Opinion
October 17, 1928.
January 25, 1929.
Sales — Evidence — Book entries — Copies — Admissibility.
In an action of assumpsit for goods sold and delivered, plaintiff testified that defendant agreed to pay for the goods shipped by plaintiff to a third party. Plaintiff denied making the promise. Attached as an exhibit to plaintiff's statement of claim were copies of invoices made out to defendant purporting to be a copy of the books of original entry. These plaintiff offered in evidence. The copies of invoices in the possession of defendant were made to the person who received the goods. Defendant made no specific denial of the averments as set forth in the copy of plaintiff's book of original entry.
In such case the offer of the copies of the book of original entry was not required, the dispute being as to defendant's liability and not as to the amount of the claim. Its admission, however, was not material error and judgment for plaintiff will be sustained.
Where the court had both sets of invoices before it, a question put to plaintiff as to the variance between them, if improper, was not material error.
A question propounded to the consignee as to whom the merchandise was sold, required the statement of a conclusion, not of a fact, and objection to it was properly sustained.
Appeal No. 280, October T., 1928, by defendant from judgment of Municipal Court, Philadelphia, February T., 1926, No. 231, in the case of Herman Horowitz, Samuel Horowitz and Morris Horowitz, trading as The Horrow Novelty Company, v. Harry Rosenzweig.
Before HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Assumpsit for goods sold and delivered. Before BONNIWELL, J., without a jury.
The facts are stated in the opinion of the Superior Court.
The court entered judgment for plaintiffs in the sum of $373.06. Defendant appealed.
Errors assigned, among others, were to various rulings on evidence.
Meyer Emil Maurer, and with him Edward Davis, of Hirschwald, Goff and Davis, for appellant. — A book account consisting of copies of original invoices and of credit bills is not self-sustaining: Cooper v. Morrel, 4 Yeates 341; Jones v. Markley, 92 Pa. Super. 352; Corr. v. Sellers, 100 Pa. 169.
Michael Edelman, and with him Edward Stone of Aarons, Weinstein and Stone, for appellees, cited: Ruthrauff v. Hagenbuch, 58 Pa. 103; Com. v. Banker Bros. Co., 38 Pa. Super. 101; Gordesky v. Ginsburg, 82 Pa. Super. 203; A. S. Wilson Co. v. Reighard, 230 Pa. 141.
Argued October 17, 1928.
This was an action of assumpsit for goods sold and delivered. Plaintiff asserted that Rose had just gone through bankruptcy and desired to have some goods and that the plaintiff agreed to ship them if there was a responsible party to pay for them; that Rosenzweig, the defendant, came and said "I will pay for goods shipped to Joseph E. Rose." The defendant denied making the promise and his liability for the goods was the only question in the case and was decided adversely to him by the trial judge who sat without a jury.
Objection was made to the admission of a memorandum, being a copy of the book of original entry. The dispute was not to the amount of plaintiff's claim, but to defendant's liability for the same. There was a question asked of the plaintiff why the copies of the invoices produced at the trial by the plaintiff were made out to Rosenzweig, the defendant, and the copies in the possession of the defendant showed them to be made out directly to Joseph Rose. This may have been proper, but its refusal was not material error. The court had both sets of bills and the variance between them was evident to the trial judge. The objection was well taken to the question asked of Rose, the party who received the goods, as to whom the merchandise was sold. He was competent to state what he knew about the facts in the case, but the question asked him to state a conclusion.
We find no merit in any of the assignments. They are overruled and the judgment is affirmed.