47 Pa. Super. 315 | Pa. Super. Ct. | 1911
Opinion by
The plaintiff, having obtained a judgment against C. H. Bradley, Jr., & Co., sought to recover the amount thereof by attaching, in the hands of the South Penn Oil Company, certain moneys alleged to be by it due to the said judgment debtor. In response to interrogatories the garnishee filed an answer setting forth at length and in detail the transactions between it and the judgment debtor, as a result of which the plaintiff alleged there was still money due and owing to that debtor. The garnishee attached to its answer, as a part thereof, two certain contracts in writing between the said C. H. Bradley, Jr., & Co. and itself. By the terms thereof it appeared that the former had agreed to furnish and install certain machinery, the detailed specifications of which were part of the contracts. These contracts contained an express
Now it is certainly true that if an action on the contract had been begun by the judgment debtor, the burden would have been upon him to prove at least a substantial compliance with his contract before he could recover the consideration money therein named or any unpaid balance of it. If, in such case, the defendant therein, the present garnishee, had filed an affidavit of defense setting forth the same matter now contained in the answer, what would have been the situation? It has always been true that- the admissions against interest of a party litigant may be used as evidence by the opposite party. If such admissions were made verbally, they could be proven by the testimony of a witness who heard them. If they were of facts sufficient to make out a prima facie case for the plaintiff, his case would be complete by the proof of such admissions. It would not be weakened because such admissions were coupled with self-serving declarations alleging that the liability which would otherwise exist had been avoided or released. -If the admissions were contained in a letter or other writing dehors the pleadings, the plaintiff could utilize such admissions against interest
In Lansdale Trust & Safe Deposit Co. v. Smith, 19 Pa. Superior Ct. 235, we had to deal with a question in substance the same as that presented by this record. There, as here, the plaintiff sought to make out its case by the use of certain admissions contained in the answer of the garnishee without being bound by other averments therein tending to show that no liability existed. Speaking of the situation which thus resulted, our Brother Beaver said: "If at this stage of the trial the plaintiff had called the appellee as upon cross-examination, he would not have been concluded by his answers and the case would have gone to the jury to determine whether such a denial overcame the presumption of indebtedness raised by the bond and mortgage already in evidence. The answers to interrogatories rose no higher as to quality and were no more conclusive of the question at issue than the testimony of the appellee would have been.” If then we treat the substance of the garnishee’s answer as if the same matter had been elicited from the party called as if for cross-examination, it would seem to be clear that there would be nothing to prevent the plaintiff availing itself of any admissions against interest thus obtained. And it would not be contended that in such case the effect of these admissions would be destroyed because the same witness undertook to state other facts tending to show that the liability which at first seemed to exist had been in fact avoided, released or extinguished.
We are not to be understood as saying that the garnishee has not set up in its answer what would have been good as an affidavit of defense in a suit on the contract itself, but its mere averment, in such affidavit, that there had been a breach of warranty and that the damages sustained thereby equaled or exceeded the unpaid purchase money, could not relieve it from the necessity of making proof of such breach and damages before it could ask that the plaintiff’s claim be regarded as extinguished. So here,
We have not before us a case like Hartman v. Meighan, 171 Pa. 46, cited and relied on by the appellee. There the plaintiff, having contracted to do a large amount of work for a specified sum, admitted that he had done but a small portion of the work. He did not sue to recover the contract price on the theory that he had performed, but to recover on a quantum meruit or pro tanto for the small portion of the work actually done. The only reason he was able to allege why he had not performed his contract was the refusal of the other party to advance certain moneys which the contract in no way obliged him to do. Under such circumstances the court could do nothing else than say that he had shown no performance of his contract and no justification for his failure to perform that could be recognized. ■ The same distinction is at once apparent in the remaining cases cited dealing with similar conditions.
It further appears from the record that one E. E. Crocker was called by the plaintiff “as for cross-examination.” It does not affirmatively appear in the record what relation he occupied towards the garnishee company or that he was a person who could be properly thus called; but these matters, like those going to the competency of a witness, were preliminary, and as no objection of record appears, we must assume that counsel at least were advised of the existence of facts which, if placed upon the record, would show that the witness could be properly called as if for cross-examination. From the testimony of this witness
Judgment reversed and a procedendo awarded.