Opinion,
"Mr. Justice Green:
The contract in question between these parties was made with the defendants by an agent of the plaintiffs. On the trial, the plaintiffs, having examined the agent who made the contract, and proved by him its terms as he had made it, proposed to prove that he informed them of what he had done, and that they thereupon accepted the contract and undertook to execute [74]*74it. This offer of proof was rejected by the learned court below. It is difficult to understand upon what principle this testimony was rejected. The contract having been made through the intervention of an agent, it was clearly competent to show that the action of the agent was communicated to. his principals, that they accepted and ratified the contract as he had made it, and that they undertook to carry it out. It is only in that way that the assent of both parties to the contract can be shown, and their willingness to be bound by its terms established. The first and second assignments are sustained.
The plaintiffs proved by overwhelming testimony that the design No. 161 for the monument was adopted by the Grand Army post and the committee, and that this design was furnished by the' plaintiffs. In the course of putting in the testimony on this subject, the plaintiffs offered to prove by whom the design was prepared, and that no similar design had been made by others. This offer was rejected, for the singular reason that no letters-patent or copyright of the design had been taken out by the plaintiffs, and therefore they had no exclusive ownership therein. We cannot possibly assent to such a doctrine. Most assuredly, when an architect prepares a design for a building, for one who is about to erect such a structure, he is entitled to be paid for it without being obliged to have it patented or copyrighted. He would be entitled to compensation for it whether it was accepted or not, unless he had expressly agreed otherwise; but certainly, where his design was accepted and actually used by the party to whom it was furnished, it would be a perversion of justice to deny compensation to the designer because he had no patent or copyright for his design. In this particular case, the proof was also admissible because it tended strongly to corroborate the plaintiffs’ claim to haying made the contract in.question with the defendants. We therefore sustain the third assignment, and we also sustain the tenth, because the narr counted as well for compensation for use of the design as upon the entire contract alleged.
We are quite unable to understand why the offers of testimony covered by the fourth, fifth, sixth, eighth, and ninth assignments of error were rejected. They related to the subject of the cost of building the monument and pedestal upon which it was to stand, the cost of transporting them to the place where they [75]*75were to be erected, and tbe cost of setting them np in place. These were all perfectly legitimate matters of proof; indeed, absolutely essential in order to enable ‘the plaintiffs to recover upon their theory of the ease; and the sources of the proof were those from which the best attainable information could be obtained. The persons who actually built the monument which was in reality erected by the defendants, and who shipped the same to the defendants, were not allowed to testify to the cost of the shipments, though they named the weight and cost per hundred pounds and the final amount paid; the persons who participated in the transportation of the monument and pedestal from the place where they were made to the place where they were set up were not allowed to testify to their knowledge upon that subject; the original freight-bills, containing upon their face the precise amounts of freight paid, were rejected for untenable reasons; and the testimony of an experienced and competent person, having an extensive, and claiming to have an accurate know'ledge of the cost of building such monuments and pedestals as the one in question, and of the cost of removing and transporting them, and of setting them up in place, was entirely rejected, and the plaintiffs thereby deprived of the opportunity of proving the very essential facts of their case. The objections to these offers were that they were incompetent and irrelevant. Irrelevant they certainly were not, because they related to the very matters in controversy. They tended to prove directly how much profit the defendants had made by violating their alleged contract with the plaintiffs. Neither were they incompetent, because the persons and the papers offered were the original persons and papers from whom and from which original and material information could be obtained. We have examined all these offers of testimony, and the objections to them, and we are clearly of opinion that they should have been allowed.
The objection which seems to be chiefly urged to their admissibility, and which appears to have controlled the court below, is that the offers do not furnish the precise and exact cost in the actual dollars and cents paid by the defendants; and it is argued that the plaintiffs might have called the defendants as witnesses, and proved by them the precise amounts paid in each instance, and, as this was the best evidence, any other testimony was for [76]*76that reason incompetent. We cannot avoid an expression of surprise that such an objection should have prevailed. It amounts to this, that where a plaintiff who claims damages for the breach of a parol contract for the division of the profits of a mutual transaction, seeks to establish his claim, he must call the defendants to prove the exact amounts paid by them in the course of the transaction, on penalty of having all other testimony on that subject rejected. There is no such rule of evidence. The rule that the best evidence of a fact must be produced, if it can be had, has no such meaning. It requires that where two different grades or qualities of proof exist, that which is the best shall be adduced, if practicable; as for instance, the contents of a writing must be proved by the production of the writing, before secondary evidence can be given. But that rule has no application to a choice between witnesses, where both have legitimate knowledge of the subject-matter of the inquiry. Some may have a better knowledge than others, but that will not exclude the knowledge of those who are the less informed, if it is otherwise competent. It is for the jury to judge of the sufficiency of the proof. So, also, the proof offered by the expert testimony of Mr. Douglass was entirely legitimate, and should have been received. He had a competent experience to qualify him for proving the probable cost of building and transporting the monument and pedestal, and of setting them up, and therefore he was a competent witness for .that purpose. Even if there were -others who had a better knowledge than he, that would not exclude his testimony. Least of all would it be excluded because the defendants knew exactly what they had paid, and therefore would be the only persons who could testify on that subject. Non constat, that they paid more than the}*- should have paid, and thus deprived the plaintiffs of more than their legitimate share of the profits which might have been made had the defendants performed the.ir contract literally. The proof of what the defendants did pay rested with them, and their right to give such proof was not at all impaired by admitting the plaintiffs’ offers. After the evidence was all in, the whole case would be for the decision of the jury. All these several assignments of error are sustained.
The seventh assignment is not sustained.
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Opinion,
"Mr. Justice Green:
The contract in question between these parties was made with the defendants by an agent of the plaintiffs. On the trial, the plaintiffs, having examined the agent who made the contract, and proved by him its terms as he had made it, proposed to prove that he informed them of what he had done, and that they thereupon accepted the contract and undertook to execute [74]*74it. This offer of proof was rejected by the learned court below. It is difficult to understand upon what principle this testimony was rejected. The contract having been made through the intervention of an agent, it was clearly competent to show that the action of the agent was communicated to. his principals, that they accepted and ratified the contract as he had made it, and that they undertook to carry it out. It is only in that way that the assent of both parties to the contract can be shown, and their willingness to be bound by its terms established. The first and second assignments are sustained.
The plaintiffs proved by overwhelming testimony that the design No. 161 for the monument was adopted by the Grand Army post and the committee, and that this design was furnished by the' plaintiffs. In the course of putting in the testimony on this subject, the plaintiffs offered to prove by whom the design was prepared, and that no similar design had been made by others. This offer was rejected, for the singular reason that no letters-patent or copyright of the design had been taken out by the plaintiffs, and therefore they had no exclusive ownership therein. We cannot possibly assent to such a doctrine. Most assuredly, when an architect prepares a design for a building, for one who is about to erect such a structure, he is entitled to be paid for it without being obliged to have it patented or copyrighted. He would be entitled to compensation for it whether it was accepted or not, unless he had expressly agreed otherwise; but certainly, where his design was accepted and actually used by the party to whom it was furnished, it would be a perversion of justice to deny compensation to the designer because he had no patent or copyright for his design. In this particular case, the proof was also admissible because it tended strongly to corroborate the plaintiffs’ claim to haying made the contract in.question with the defendants. We therefore sustain the third assignment, and we also sustain the tenth, because the narr counted as well for compensation for use of the design as upon the entire contract alleged.
We are quite unable to understand why the offers of testimony covered by the fourth, fifth, sixth, eighth, and ninth assignments of error were rejected. They related to the subject of the cost of building the monument and pedestal upon which it was to stand, the cost of transporting them to the place where they [75]*75were to be erected, and tbe cost of setting them np in place. These were all perfectly legitimate matters of proof; indeed, absolutely essential in order to enable ‘the plaintiffs to recover upon their theory of the ease; and the sources of the proof were those from which the best attainable information could be obtained. The persons who actually built the monument which was in reality erected by the defendants, and who shipped the same to the defendants, were not allowed to testify to the cost of the shipments, though they named the weight and cost per hundred pounds and the final amount paid; the persons who participated in the transportation of the monument and pedestal from the place where they were made to the place where they were set up were not allowed to testify to their knowledge upon that subject; the original freight-bills, containing upon their face the precise amounts of freight paid, were rejected for untenable reasons; and the testimony of an experienced and competent person, having an extensive, and claiming to have an accurate know'ledge of the cost of building such monuments and pedestals as the one in question, and of the cost of removing and transporting them, and of setting them up in place, was entirely rejected, and the plaintiffs thereby deprived of the opportunity of proving the very essential facts of their case. The objections to these offers were that they were incompetent and irrelevant. Irrelevant they certainly were not, because they related to the very matters in controversy. They tended to prove directly how much profit the defendants had made by violating their alleged contract with the plaintiffs. Neither were they incompetent, because the persons and the papers offered were the original persons and papers from whom and from which original and material information could be obtained. We have examined all these offers of testimony, and the objections to them, and we are clearly of opinion that they should have been allowed.
The objection which seems to be chiefly urged to their admissibility, and which appears to have controlled the court below, is that the offers do not furnish the precise and exact cost in the actual dollars and cents paid by the defendants; and it is argued that the plaintiffs might have called the defendants as witnesses, and proved by them the precise amounts paid in each instance, and, as this was the best evidence, any other testimony was for [76]*76that reason incompetent. We cannot avoid an expression of surprise that such an objection should have prevailed. It amounts to this, that where a plaintiff who claims damages for the breach of a parol contract for the division of the profits of a mutual transaction, seeks to establish his claim, he must call the defendants to prove the exact amounts paid by them in the course of the transaction, on penalty of having all other testimony on that subject rejected. There is no such rule of evidence. The rule that the best evidence of a fact must be produced, if it can be had, has no such meaning. It requires that where two different grades or qualities of proof exist, that which is the best shall be adduced, if practicable; as for instance, the contents of a writing must be proved by the production of the writing, before secondary evidence can be given. But that rule has no application to a choice between witnesses, where both have legitimate knowledge of the subject-matter of the inquiry. Some may have a better knowledge than others, but that will not exclude the knowledge of those who are the less informed, if it is otherwise competent. It is for the jury to judge of the sufficiency of the proof. So, also, the proof offered by the expert testimony of Mr. Douglass was entirely legitimate, and should have been received. He had a competent experience to qualify him for proving the probable cost of building and transporting the monument and pedestal, and of setting them up, and therefore he was a competent witness for .that purpose. Even if there were -others who had a better knowledge than he, that would not exclude his testimony. Least of all would it be excluded because the defendants knew exactly what they had paid, and therefore would be the only persons who could testify on that subject. Non constat, that they paid more than the}*- should have paid, and thus deprived the plaintiffs of more than their legitimate share of the profits which might have been made had the defendants performed the.ir contract literally. The proof of what the defendants did pay rested with them, and their right to give such proof was not at all impaired by admitting the plaintiffs’ offers. After the evidence was all in, the whole case would be for the decision of the jury. All these several assignments of error are sustained.
The seventh assignment is not sustained. The mere opinions of the members of the committee, as to whether there was a con[77]*77tract between the plaintiffs and defendants, would not be evidence to prove that fact.
We do not agree with the learned court below in holding that there could not be a recovery in the action of assumpsit. The allegations and proofs of the plaintiffs were that the defendants had not carried out the contract with them. They had not engaged in the execution of a contract of partnership, or any contract for their mutual advantage or profit. On the contrary, they had proceeded to have the monument and pedestal built and placed exclusively on their own account and for their own benefit and advantage, and had thus violated the contract which the plaintiffs claimed and gave evidence to prove. In other words, they had broken the contract of partnership or joint interest, and therefore no such contract was performed or executed. In such circumstances, the injury or breach which gives a legal remedy is a violation of the contract of partnership, and not its execution and a consequent partnership liability. Hence a partnership bill which lies between persons who actually are partners, and for the settlement of the partnership accounts, is not the proper remedy, simply because, although the defendants agreed to become partners with the plaintiffs in this transaction, in point of fact they did not, and hence the relation did not exist. The action, therefore, must be regarded as an action to recover damages for the breach of a contract to become partners, and for that purpose the proper remedy would be an action of assumpsit on the undertaking. But, of course, while all this is true, the measure of damages would be in accordance with the terms of the contract, to wit, one half of the profits which the defendants did make, or ought to have made, in doing the work in question. Hence it was quite legitimate for the plaintiffs to claim in the narr and to prove on the trial, that they were entitled to have the one half of those profits from the defendants, and to give evidence as to what those profits were or should have been. Moreover, as this was a single transaction, without any complicated accounts to adjust, we would incline to hold, were it necessary to do so, that the case came properly within the somewhat numerous decisions of this court, in which it is held that, where the transaction is single, without complicated accounts, and there are no debts to be adjusted, a bill in equity is not necessary for the settlement of the accounts, but [78]*78an action of assumpsit will lie. Instances of this are to be found in Wright v. Cumpsty, 41 Pa. 103; Cleveland v. Fararr, 4 Brewst. 27; Galbreath v. Moore, 2 W. 86; Meason v. Kaine, 63 Pa. 336. It is not necessary to rest the decision of the present case upon this principle, however, as we regard the proceeding as an action to recover damages for the breach of a contract to enter into a partnership or joint relation, and not as a proceeding to settle partnership accounts. The eleventh assignment is sustained.
While it may be that there was not sufficient evidence to show what the profits made by the defendants were, that result was largely due to the rejection by the court of the plaintiffs’ offers of testimony, and the plaintiffs could not fairly be held responsible therefor. Technically, therefore, the defendants’ second point may have been correctly answered, in view of the actual state of the admitted testimony, and for that reason only we do not sustain the twelfth assignment.
The thirteenth assignment is sustained because we do not agree with the learned court below in holding that there was no evidence that YanDusen had any knowledge of the contract made by Johnson, and that Johnson had no authority to bind the firm by such a contract as is alleged by the plaintiffs. It was a contract fairly in the line of their business, and therefore within the authority of a partner. Moreover, Johnson, as a partner, was the authorized agent of the firm for the making of contracts within the scope of the firm’s business, and we are of opinion that this contract was within that class. In addition to this, however, the letter of January 18, 1886, to Douglass, signed by the firm name, and in direct answer to the one written by Douglass to the defendants on January 13th, just preceding, would be quite sufficient to take this question of VanDusen’s knowledge to the jury. The letter of the firm to Douglass, of November 28, 1885, is in the same category of testimony. But it would require a most violent presumption, against all the probabilities of the case, to declare that YanDusen had no knowledge of the contract made by Johnson with the plaintiffs, and we do not consider that the court had any right to make such a presumption as a matter of law. It was for the jury at the best, and there were plenty of facts and circumstances in [79]*79the case to enable the plaintiffs to challenge the correctness of any such presumption by the jury.
A matter much discussed by the counsel for the defendants was the legality of the contract made, or alleged to have been made, by the plaintiffs with the defendants. It was decided against the defendants by the court below, and is not before us. We therefore do not consider it, but that circumstance must not be taken as a concession that there was error in the court’s ruling on that subject.
While there was perhaps some evidence that the defendants had made profit out of their work, it was scarcely specific enough, or complete enough, to leave to the jury, and we therefore do not sustain the fourteenth assignment. The fault, however, was due to the improper rejection of the plaintiffs’ offers of proof, and they cannot be regarded as responsible for the insufficiency of the proof.
Judgment reversed, and new venire awarded.
Mr. Chief Justice Paxson noted his dissent.