170 F. 857 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1909
With reference to the suit against the General Rubricating Company, it is enough, I think, to say in support of the compulsory nonsuit that the plaintiff brings the action as an individual, whereas the contract which lies at the base of his claim was made with the Crosby Lubricating Company, a partnership of 'which he was a member. On such a contract he cannot sue in his own name, as if he were the legal plaintiff. There are other objections, also, to his right to recover; but I shall not take time to discuss them.
The contract just referred to is equally fundamental to his success in the suit against Hammerling; but lie fail ed altogether to prove that the sales alleged to have been made by Hammerling were such as the contract agreed should be made solely by the Crosby Company. The action is founded upon the theory that, although Hammerling was
I may add that, so far as the affidavit of defense made by Ham-merling is concerned, its contents are not properly before the court, because the affidavit was not offered in evidence at the trial. In Pennsylvania the office of such an affidavit is simply to prevent a summary judgment. Its contents may be competent evidence as admissions made by the affiant; but the paper must be offered in evidence in the same manner as any other written instrument, before the admissions are legally established. In Mullen v. Insurance Co., 182 Pa. 150, 37 Atl. 988, the Supreme Court of Pennsylvania held that:
“It is reversible error for a trial court to permit counsel for plaintiff' to read in bis argument to tbe jury the affidavit of defense filed in the case, when such affidavit has not been offered in evidence by either side.”
It is said in the opinion:
“If it [the affidavit] contained an omission or statement inconsistent with the defense made on the trial, and the plaintiff desired the benefit of the inconsistency, he should have offered the paper in evidence. It was not an item of evidence in the ease, and therefore the plaintiff had no right to read it or comment upon it to the jury.”
See, also, Stockwell v. Loecher, 9 Pa. Super. Ct. 241.
The limited function of such an affidavit is well known in the state practice.
In each case the motion to take off the nonsuit is refused, and to this refusal an exception is sealed.