46 Pa. Super. 485 | Pa. Super. Ct. | 1911
Opinion by
Both of the assignments of error go to the refusal of the court to enter judgment for the defendant non obstante veredicto. The appellant has the affirmative of the proposition, therefore, that the evidence did not warrant the submission of the case to the jury. The action was on three promissory notes given by the defendant to the plaintiff. The execution of the notes was admitted and when they were offered in evidence a prima facie case was made out for the plaintiff. The defense was that the notes were given as part of the consideration for ten barrels of whisky bought by the defendant from thé plaintiff, delivery of which was not made by the plaintiff, as a consequence of which the consideration for the notes failed. The evidence introduced by the defendant shows that the transaction was this: The plaintiff is a distill ing company doing business at Baltimore; it had in its bonded warehouse a quantity of whisky, ten barrels of which the defendant bought, the evidence of such purchase being a bill of sale from the plaintiff to the defendant and an acknowledgment in writing by the latter that he had purchased the whisky. The contract showjs that the sale was at ninety-five cents per gallon “in bond” and in execution of the contract the plaintiff delivered to the defendant two United States internal revenue bonded warehouse receipts numbered 5236 and 5237 Warehouse G for five barrels of whisky each. These barrels were identified by their serial numbers, by the warehouse numbers and by the brand of the United States gauger. The whisky was deliverable only on the return of the warehouse receipts and on the written order of the holder thereof and on payment of the United States government tax with storage at the rate of eight cents per barrel per month from the date of purchase. These receipts were accepted
The judgment is affirmed.