196 Pa. 419 | Pa. | 1900
Opinion by
The plaintiff’s statement of cause of action contains throughout a claim that the defendant was indebted to her for the proceeds of whiskey belonging to her but which he sold for her as her agent. The first clause alleged that the defendant was indebted to her for large quantities of whiskey, which the defendant received from her agent and “ sold for plaintiff and received the money or proceeds of said sales from time to time.” The second clause alleges “that from about July 20, 1894, to about March 24,1895, the defendant sold and collected for sales, of plaintiff’s whiskey and liquor, the sum of $1,608.75, and from that time on until about August 1, 1897, the sum of $734.06.” The third clause charges that defendant “marked down the values of whiskey or liquor he took away from time to time,” representing the values of the whiskey he received from her (plaintiff), “ and which defendant had agreed to, or was to sell at said prices for the plaintiff as her agent or salesman.” The fifth clause states that, “ the plaintiff allows the defendant the sum of $250, commission for said sales of said whiskey or liquors, that being the amount or balance he is entitled to receive.” Then follows a statement in items of the values of liquor taken away and sold by defendant for the plaintiff, amounting in the aggregate to $2,342.81, “ from which is deducted $250 amount of defendant’s commissions,” leaving a balance due the plaintiff of $2,092.81.
It will be perceived from this analysis of the plaintiff’s statement of cause of action, that it is in no sense a bill for goods sold and delivered by plaintiff to defendant, but is exclusively a claim for moneys due by defendant to plaintiff, which were collected from third parties to whom defendant had sold the whiskey as the agent of the plaintiff. On its face, therefore, it is a claim for money due from the defendant as agent, to the plaintiff as principal, collected by him for her and not paid over.
This being the correct legal aspect of the claim, the case is brought within a clear line of decisions, in which it has been held, that the agent could not make defense against the claim on the ground that the sales were illegal, because made with
In the present case the facts were that the whiskey was delivered to the defendant by the plaintiff’s husband acting as her agent, who had a distillery as well as a revenue license, and it is extremely doubtful to say the least that there was any illegality whatever in the transaction. But, however, that may be, the defendant cannot set up any such defense, even if the want of a license by the plaintiff would have otherwise vitiated the transaction. The learned court below, not at all controverting the foregoing authorities, or the principle they establish,
Another witness, Miles Roth, who was the distiller at the distillery was examined and testified thus: “ Q. You were the distiller at the time Mr. Hertzler carried it on? A. Yes, sir. Q. The time they lived there, were you ? A. Yes, sir. Q. During that time did you notice whether since 1894 Mr. Geigley used to fetch whiskey there? A. Yes, sir. Q. More than once? A. I don’t-understand that right. Q. Whether he took whiskey away from the retail house ? A. Yes, he was an agent for Hertzler. Q. To sell whiskey, was that it? Did you see Mr. Geigley fetch away whiskey from the distillery after 1894, after the sheriff’s sale ?' A. Yes. Q. How often did you see Mm there about ? A. About well probably, perhaps every two weeks. Sometimes every four weeks. I couldn’t exactly say how often. Sometimes not perhaps for a whole month. Q. Did you .ever measure it out for him when Mr. Hertzler was not there ? A. Yes, sir. Q. How much did he fetch away as near as you can recollect the time you measured it out for Mm ? A. Sometimes he fetched away from sixteen to thirty-five gallons and sometimes not so much.”
It is perfectly manifest from a mere inspection of the figures of the account, and from the testimony as to the frequency
The assignments of error are sustained.
Judgment reversed and new venire awarded.