Frack v. Houtz

Supreme Court of Pennsylvania

Frack v. Houtz

31 A. 640, 167 Pa. 316, 1895 Pa. LEXIS 903

CourtSupreme Court of Pennsylvania

DecidedApril 8, 1895

DocketAppeal, No. 175

StatusPublished

This text of 31 A. 640 (Frack v. Houtz) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frack v. Houtz, 31 A. 640, 167 Pa. 316, 1895 Pa. LEXIS 903 (Pa. 1895).

Pincite

Opinion

Opinion by

Mr. Justice Fell,

The suit was to recover the price of goods claimed to have been sold by Daniel Fraek to Gerber & Houtz. Judgment was entered against M. C. Ploutz, for want of an affidavit of defense, and M. A. Gerber defended on the ground that the goods had not been purchased by the partnership, but contributed by his copartner as a part of her share of the capital. This was the only issue of fact raised. The business had been managed for the firm by A. W. Houtz, the husband of M. C. Houtz, one of the defendants, and the son in law of Daniel Fraek, whose executors were plaintiffs; and their case rested mainly on his testimony. The partnership had been dissolved by the purchase by M. O. Houtz of her partner’s interest, and at the time of the dissolution a statement of the business had been prepared in which the price of the goods claimed to have been sold was charged to capital stock, and did not appear among the bills payable. There was testimony that this statement had been made up from information derived from A. W. Houtz. The statement was offered in evidence and rejected. We are of opinion that it should have been admitted.

The learned judge was right in the view expressed that a statement made in the absence of the seller, and of which he had no knowledge, could not affect him, but it affected the credibility of the principal witness for the plaintiff. This witness had been the manager in charge of the business, and had testified that the goods had been purchased by the firm. That on another occasion he had represented that the goods were a part of his wife’s contribution to the capital went directly to his credibility.

The objection to this witness on the ground that he was called to testify against his wife was not well founded. M. O. Houtz had allowed judgment to be entered against her by default, and the case had proceeded to trial against M. A. Gerber [322]*322alone. She was not a party to the issue on trial, and a recoveiy against the other party sued was in her interest and not against it. Of the numerous assignments of error the third is the only one that can be sustained, and we regret that a single error in a protracted trial which was carefully and ably conducted calls for a reversal.

The judgment is reversed and a venire de novo awarded.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion by

Mr. Justice Fell,

The suit was to recover the price of goods claimed to have been sold by Daniel Fraek to Gerber & Houtz. Judgment was entered against M. C. Ploutz, for want of an affidavit of defense, and M. A. Gerber defended on the ground that the goods had not been purchased by the partnership, but contributed by his copartner as a part of her share of the capital. This was the only issue of fact raised. The business had been managed for the firm by A. W. Houtz, the husband of M. C. Houtz, one of the defendants, and the son in law of Daniel Fraek, whose executors were plaintiffs; and their case rested mainly on his testimony. The partnership had been dissolved by the purchase by M. O. Houtz of her partner’s interest, and at the time of the dissolution a statement of the business had been prepared in which the price of the goods claimed to have been sold was charged to capital stock, and did not appear among the bills payable. There was testimony that this statement had been made up from information derived from A. W. Houtz. The statement was offered in evidence and rejected. We are of opinion that it should have been admitted.

The learned judge was right in the view expressed that a statement made in the absence of the seller, and of which he had no knowledge, could not affect him, but it affected the credibility of the principal witness for the plaintiff. This witness had been the manager in charge of the business, and had testified that the goods had been purchased by the firm. That on another occasion he had represented that the goods were a part of his wife’s contribution to the capital went directly to his credibility.

The objection to this witness on the ground that he was called to testify against his wife was not well founded. M. O. Houtz had allowed judgment to be entered against her by default, and the case had proceeded to trial against M. A. Gerber [322]*322alone. She was not a party to the issue on trial, and a recoveiy against the other party sued was in her interest and not against it. Of the numerous assignments of error the third is the only one that can be sustained, and we regret that a single error in a protracted trial which was carefully and ably conducted calls for a reversal.

The judgment is reversed and a venire de novo awarded.

Cite This Page — Counsel Stack

Bluebook (online)

31 A. 640, 167 Pa. 316, 1895 Pa. LEXIS 903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frack-v-houtz-pa-1895.