Kaufman v. Abeles

11 Pa. Super. 616, 1899 Pa. Super. LEXIS 188

• Court: Superior Court of Pennsylvania
• Decided: November 20, 1899
• Docket: Appeal, No. 77
• Status: Published

Opinion

Opinion by

Beaver, J.,

“ Izz its legal effect a coznpulsory nonsuit is substazztially the same as a demurrer to the evidence, except that the trial judge cannot give judgment for the defendazit. It thus impliedly admits all the facts which the jury might have inferred from the testimony: Maynes v. Atwater, 88 Pa. 496; Miller v. Bealer, 100 Pa. 583. If there be azzy evidezice beyond a znere scintilla, however slight, from which the jury may draw azz iziference favorable to the plaintiff, the case should be subznitted; azid, if it izzadvertezztly happens to be withdrawn frozn the jury by judgment of nonsuit, the latter should be takezz off by the trial judge : ” Bastian v. Phila., 180 Pa. 227.

Baznberger, an insolvezzt, cozztizzued izz the ezzzploy of his assigzzee, the defezzdant, izz a retail store. Plaizztiff’s agezzt, as was his wozzt, visited the store azzd offered to sell a bill of goods to Bamberger, who informed hizn of his insolvency azzd izzability to make purchases. He. referred him at the sazne time to the defezzdant who was izz the store. What followed appears in the testimony of the agezzt. “I told him (defezzdazzt) that Mr. Bamberger would like to buy those goods, providing he was satisfied; that he couldn't buy them hiznself, because he was under Mr. Abeles — he was the assignee — azzd he told zne then, ‘ You sell here, while I azn assignee. I will hold zzzyself responsible;’ azzd I said, ‘All right; I will sell those goods.’ He said it was all right. He said he would see that they would be paid for, while he was assigzzee. I told Mr. Bamberger Mr. Abeles consented to buy tbe goods. It was all right and he went along down to the sample room and I sold the goods and delivered them up in the store.” These facts are reiterated in various forms and their effect is rather emphasized than diminished by the cross-examination and the testimony of Bamberger. If the defendant had been a stranger and had agreed to make a purchase of goods for Bamberger, no sale having been made to the latter, he would undoubtedly have been liable as an original promisor. Bamberger, assuming the truth of his statement as we must — made no purchase and could make none; there was no liability on his part and no promise, express or implied, to pay; he had contracted no debt and it was, therefore, impossible for defendant to have agreed to pay his debt. The promise, therefore, if one was made, does not come within the provisions of the Act of April 26, 1855, P. L. 308: Nugent v. Wolfe, 111 Pa. 471; Watson v. Porzel, 158 Pa. 513; Bailey v. Marshall, 174 Pa. 602. The fact that he was Bamberger’s assignee can make no difference in the principle: Wilmarth v. Mountford, 8 S. & R. 124; Filson v. Dunbar, 26 Pa. 475.

If the conversation between plaintiff’s agent and the defendant admitted of more than one interpretation, it was for the jury, as was also the credibility of the witnesses : McFarland v. Newman, 9 Watts, 55; Brubaker v. Okeson, 36 Pa. 519; Fulton v. Lancaster, 162 Pa. 294.

No opinion was filed by the court below and we are at a loss to determine upon what grounds the nonsuit was entered or those for the refusal to take it off upon application.

The only question raised by the specifications of error is as to the refusal of the court to take off the nonsuit entered at the trial. In this we think there was error, as there was sufficient testimony to carry the question of the defendant’s liability to the jury.

Judgment reversed and a new venire awarded.