McClure v. Times Publishing Co.

169 Pa. 213 | Pa. | 1895

Opinion by

Mr. Justice McCollum,

The single question involved in this case is whether there, was an unqualified acceptance by the defendant company of the offer contained in the plaintiff’s letter of Aug. 31, 1889. It is a question of fact to be decided upon the evidence, and the learned referee, to whom it was submitted under the act of 1874,. having carefully and intelligently considered it, found, that the offer was not so accepted. His finding is like that of a jury, and the familiar rule applicable to it is that it cannot be reversed on appeal if the evidence- fairly warranted it. A patient study of the evidence in connection with the referee’s discussion of it has convinced us that no item of it was overlooked or ignored in reaching the conclusion we are required to review. While there may be room for disagreement concerning the correctness of the finding, there can be none for doubt that it was the result of a conscientious performance of duty. In view of the full and clear statement and discussion of the evidence in the referee’s report, there is no occasion for including it, or for noting the bearing of every detail of it, in this opinion. It is sufficient for our purpose to note the salient features of it, and their legitimate influence in the decision of the question raised by the pleadings. In the first place, it is obvious and undisputed that an acceptance of the plaintiff’s offer by the defendant company would have constituted a plain departure from its well settled policy in matters of this nature and compelled it to pay for literary work which might prove to be wholly unsuited to its needs. It also distinctly appears in the testimony and is conceded by the plaintiff that the company flatly refused to accept his offer, and named the only terms on which it was willing to contract with him in relation to the subject of it. In close connection with this refusal and the indication of a willingness to take the matter offered, on the terms proposed bjr the company, the plaintiff said to McLaughlin, its representative in the negotiations, that he was in need of money and inquired if he could have some. He was asked how much he wanted and he replied, “five hundred dollars.” He was toíd that he could have it, as the company would probablj1- take the proffered matter “ for five weeks anyhow.” He was asked “ when he was going to send it,” and he said: “ I am going to try to get it up right away.” To this, McLaughlin, speaking for the company, said, “ all right.” This conversation was in the company’s office in Philadelphia before the plaintiff went West, and it is not claimed by either party that previous to or at that time there was an express acceptance by him of the company’s offer or an express or implied acceptance by the company of his offer. The plaintiff however says that on his’ return from the West he was shown an announcement in The Times of September 14th, which he construed as an acceptance of his offer of August 31st, and that he said to McLaughlin, “I see you have taken it,” and McLaughlin replied, “ Yes.” It is upon the announcement referred to, and the remark and answer alleged to have been made two days after it, that the plaintiff rests his claim. Referring to the remark the plaintiff says he made on that occasion and to McLaughlin’s alleged answer to it, the latter says, “ nothing of the kind ever occurred.” In view of the fact that the remark, “ I see you have taken it,” is ambiguous, and of the conclusion of the learned referee that the plaintiff’s “ memory is not to be relied upon at a contested point when it comes in conflict with that of other men,” we think that his contradicted and uncorroborated testimony as to what was said in the admittedly brief interview between him and McLaughlin on the 16th of September, cannofbe regarded as an important factor in the decision of the case. In the light afforded by the testimony taken after the case was reopened, it is obvious .that what was said bjr the plaintiff in his letter of October 1st, about the advance of five hundred dollars, referred to his conversation with McLaughlin before he went West, and, as we have already seen, the proposal to advance this sum was connected witb and qualified by the offer the company then made.

If it be conceded that the announcement in The Times, of September 14th, would warrant an inference favorable to the plaintiff’s contention, it is certain that there was nothing in it which precluded the company from asserting the truth as a defense to this action. It was at most an item of evidence to be considered with other evidence in the case, in determining whether there was an acceptance by the company of the plaintiff’s offer. The learned referee found against the plaintiff on this pivotal point, and the evidence fairly sustains his finding. This conclusion renders separate consideration of the thirty-nine specifications of error unnecessary. We overrule all of them.

Judgment affirmed.