90 Pa. Super. 332 | Pa. Super. Ct. | 1926
Argued October 21, 1926.
The plaintiff, a foreign corporation, brought suit against the defendant on a book account. The case was tried by the court without a jury. At the trial, the plaintiff offered in evidence the book account attached to plaintiff's statement of claim and called attention to the fact that the correctness of it was not contraverted but that the statement in defendants's affidavit of defense was not that the goods were not delivered in quantity and of value as set forth in the bill, but that they were never bought. The court then stated and it was duly entered upon the record by the stenographer "there is no denial of the correctness of the book account." The appellant argues that this was not following the methods outlined in Buehler v. U.S. Fashion Plate Co.,
The goods were shipped November 21, 1923 and on April 25, 1924, the defendant wrote a letter which was a reply to two letters written by the plaintiff in which he states that he will try to get the samples, as he designates the articles sent to him, together as soon as possible, as some were in the hands of a few prospective buyers. "In the event that I shall not be able to recover the samples I shall ask you to render a bill less the original discount offered to me and I will pay for them."
On August 4, 1924, the defendant wrote to the plaintiff *335 that in the course of a few days they would pack up the stuff they had on hand and return it and on September 20th, the plaintiff wrote to the defendant, receipt of the letter being admitted, that they might return the goods in ten days or make settlement as indicated in their former letters. Suit was brought on June 24, 1925 and at that time, the goods had not been returned. There was absolutely no evidence at the trial of the case that the goods were ever returned. It requires no argument to show that defendant could not retain the goods indefinitely and that the court was right in holding that he was liable for their value. The appellant claims that the receipt of these letters was error for they were in the nature of an offer of compromise. We do not so regard them. They were admissions of liability. They showed that the defendant had no defense to the plaintiff's claim.
The defendant assigns for error the failure to grant a new trial, the grounds of which are after discovered evidence. He produced Exhibit "A" showing that the Articles of Incorporation of the Doylestown Aluminum Ware Company granted by the State of Ohio in 1911 were cancelled upon certificate of the Tax Commission filed February 15, 1926.
The only proof that has been brought to the court is the certificate of the Secretary of the State of Ohio attached to the supplemental reasons for a new trial and the court was right in refusing the new trial upon mere presentation of this certificate. We do not know what the effect of the cancellation was under Ohio laws or whether or not a subsequent submission of a report by the delinquent corporation would restore its corporate rights, for evidently the cancellation of the certificate was an effort to compel the corporation to file a report. The defendant should have taken means to present the matter in the proper way. Depositions should have been taken when the subject could have *336 been fully gone into. We would not regard the mere certificate submitted as conclusive evidence that the legal existence of the corporation was dissolved for all purposes and for all time and that the choses in action of the corporation were thereby destroyed and all its debtors released from liability.
All the assignments of error are overruled and the judgment is affirmed.