Opinion
October 1, 1931.
November 11, 1931.
Evidence — Letters — Admissibility.
In an action of trespass to recover damages for the conversion of certain stock, there was evidence that the plaintiff ordered the defendants to purchase the stock for him and that they directed their correspondent to purchase the stock for them. The defendants thereafter received from their correspondent a written confirmation of purchase and they credited the plaintiff's account. Subsequently the correspondent notified the defendants by letter that the former notice was a mistake and that in fact no stock had been purchased for them. Thereupon the defendants took the stock out of the plaintiff's account without his consent. At the trial the defendants did not offer any direct evidence of the alleged mistake by those responsible for or having first-hand knowledge of it, but introduced in evidence the letter which stated that such an error had been made.
Held: (1) That until there was first introduced testimony by the person or persons responsible for the alleged mistake, or having first hand knowledge of it, explaining how it had been made, who could be cross-examined by the plaintiff the letter did not become competent evidence and (2) that a judgment entered for the defendants will be reversed.
Appeal No. 139, October T., 1931, by plaintiff from judgment of M.C., Philadelphia County, December T., 1929, No. 1245, in the case of Joseph F. Schanne v. E. Clarence Miller, Walter H. Lippincott, Henry D. Wieand, Carl F.R. Hassold and E. Russell Perkins, trading as Bioren Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE, and DREW, JJ. Reversed.
Trespass to recover damages for conversion of stock. Before WALSH, J., without a jury.
The facts are stated in the opinion of the Superior Court.
Finding for the defendant and judgment entered thereon. Plaintiff appealed.
Error assigned, among others, was the admission of certain testimony.
J. Kennard Weaver, for appellant.
Wm. G. Nixon, and with him J.F. Shrader, for appellee.
Argued October 1, 1931.
When this case was here before, ( 100 Pa. Super. 76), we said that the facts averred in the affidavit of defense, if established to the satisfaction of the jury, made out a good defense; but we said nothing to intimate that it could be established by other than competent evidence.
The mistake of defendants' New York correspondents, Clark, Childs Co., in reporting to defendants the purchase of stock which the plaintiff had ordered defendants to buy, when in reality none had been bought by them for plaintiff's account or otherwise, could not be proved by introducing in evidence a letter from said correspondents to defendants stating that such an error had been made. This letter did not become competent evidence until there was first introduced testimony by the person or persons responsible for the alleged mistake, explaining how it had been made, who could be cross-examined by the plaintiff and the truth of such evidence tested in the usual way.
Only after there had been direct evidence of the alleged mistake by those responsible for or having first-hand knowledge of it, did the letter from Clark, Childs Co., to defendants become relevant as bearing on the question of notice to the plaintiff and the subsequent acts of the parties.
The first, second and fourth assignments of error are sustained. The judgment is reversed and a new trial awarded.