Fleming v. Dixon

44 A. 1064, 194 Pa. 67, 1899 Pa. LEXIS 730

• Court: Supreme Court of Pennsylvania
• Decided: December 30, 1899
• Docket: Appeal, No. 103
• Status: Published

Opinion

Opinion’ by

Mr. Justice Brown,

This appeal is utterly without merit. But a single question, purely of fact, was involved in the trial of the cause in the court below. The plaintiff sought to recover the price of goods which be alleged he had sold to the defendant. The latter testified he had not bought them. In his opening words to the jury the learned-trial judge concisely and correctly told them the nature of the case and what they were to consider and determine when he said: “ This case really when reduced to its elements is a very simple one. It is simply a suit to recover by the plaintiff from the defendant the price of certain goods which he says he sold at a fixed price to the defendant. If the bargain set up by him was made he would be entitled to recover. If it was not made he would not be entitled to recover.”

Not a single exception was noted, and none could have been properly taken by the defendant to the admission or rejection of evidence, and in a charge, the whole of which has been assigned as error, the court fairly, impartially and intelligently submitted the facts to the jury, who found, as they were justified in finding, in favor of the plaintiff, instead of yielding to what they must have felt was the improbable statement of the defendant and his brother Charles. This disposes of the first assignment of error. Plaintiff having testified that he had agreed with defendant to pay half the license fee, $250, provided he was paid his money immediately after the transfer of the license to Charles P. Dixon, the court, upon a review of the evidence after verdict, would have relieved the defendant to the extent of the said sum, even though he had not complied with the condition upon which Fleming says the abatement was to be allowed. The relief tendered was refused. The order of court providing for it was made for the benefit of the defendant now complaining of it, and we overrule his second assignment of error. The point presented by the defendant was substantially and clearly answered in the charge, when the learned trial judge said: “ There is testimony here showing that the sale was not made*to the defendant, but was made, not at this time, but at a prior date, to his brother, Charles P. Dixon. That has nothing to do with the case excepting in so far as it indicates that the sale was not made to Joseph M. Dixon, because, if the sale was not made to Joseph M. Dixon, it does not matter, for the purpose of this case, whether or not it was made to Charles P. Dixon, or whether it was made to any one. If the sale was not made to Joseph M. Dixon no recovery can be had from Joseph M. Dixon of course.” No further light could have been given to the jury by noticing the point submitted, and the failure to answer it was not error. Patterson v. Kountz, 63 Pa. 246 ; Winsor v. Maddock, 64 Pa. 231.

The judgment is affirmed.