28 Pa. Super. 440 | Pa. Super. Ct. | 1905
Opinion by
The plaintiffs filed a statement averring the right to recover upon the ground that they had in November, 1900, “ verbally agreed with said defendant that he, the said defendant, should handle and sell the goods, wares and merchandise of the plaintiffs at a commission of ten percentum; that said defendant should keep and save harmless the said plaintiffs of and from one-half of any and all losses incurred in selling said goods, wares and merchandise of said plaintiffs; and should bear and pay to plaintiffs one-half of all losses on sales made by or through said defendant; that the plaintiffs have shipped goods, wares and merchandise on the order of the defendant and sold by and through him to the following parties, and have lost on said sales the following amounts : ” then followed a list of alleged sales and losses thereon, aggregating $951.82, an averment of the liability of the defendant for one half of said amount and his failure to pay the same.
The- plaintiffs failed to prove, at the trial, that any of the sales in question had been made by or through the defendant, their evidence established that none of said sales had been made
The defendant had in his affidavit of defense denied that he had entered into the agreement declared upon, and his plea was non assumpsit. With the record in this condition, and upon the evidence produced by the plaintiffs, the defendant moved the court for a compulsory nonsuit, and the motion was overruled. The defendant offered no evidence, and the court peremptorily instructed the jury to find a verdict in favor of the plaintiffs for $311.34, which instruction is assigned for error. The plaintiffs have proved a contract materially different from that upon which they had declared, and were not entitled to recover without an amendment of the pleadings: Hennessy v. Anstock, 19 Pa. Superior Ct. 644; Wilkinson Manufacturing Co v. Welde, 196 Pa. 508. The written evidence, consisting of letters which passed between the parties, indicated that a contract of some nature had been made, but the evidence as to the terms and extent of the contract was entirely oral, the credibility of the witnesses was therefore for the jury. The evidence as to the amount of the loss which had resulted from the sales in question was exclusively oral, and was .by no means clear. The burden was upon the plaintiffs to establish the amount of the loss, and, even if the pleadings had been
The judgment is reversed and a venire facias de novo awarded.