62 Pa. Super. 598 | Pa. Super. Ct. | 1916
Opinion by
The hardware and other materials, to recover the price of which this action was brought, were ordered, delivered and used for the repair of a mill in the City of Chester.
The account runs from April 7,1914, to July 2d of the same year. There is no dispute as to the price, quantity or quality of the goods. The defense set up at the trial was that they were not ordered by or delivered to the General Flooring and Mfg. Co., but that R. O. Scheel, who became president of the company on May 1, 1914, was exclusively liable for them in his individual capacity. The case was tried by the court without a jury and its decision depended mainly on oral testimony. The court made a general finding in favor of the plaintiffs for the full amount of their claim, and after dis missing the defendant’s motions for a new trial and for judgment n. o. v., entered judgment thereon.
With regard to the second assignment of error, it is enough to say that as the defendant did not present at the trial a written request for binding direction, or its equivalent, it was not entitled to judgment n. o. v., under the Act' of 1905: Haley v. American Agricultural Chemical Company, 224 Pa. 316; Hanick v. Leader, 243 Pa. 372; Philadelphia & Gulf Steamship Company v. Clark, 59 Pa. Superior Ct, 415.
In the determination of that question, depending as it does on oral testimony and involving the credibility of witnesses, the plaintiff is entitled to the benefit of every fact and inference of fact which the trial judge could reasonably deduce from the testimony which he credited.
There was evidence from which the following facts could be found: Before any of the goods were ordered or delivered, the plaintiff’s representative went to the mill and upon inquiry of George W. Levering, the engineer in charge, was informed that the General Flooring & Mfg. Co. was opening up the plant and that R. O. Scheel was at the head. Later he went to the mill and was there introduced by Levering to Scheel, who told him “they were going to do business there, and Mr. Levering would be needing material to fix up the plant and to let him have everything he needed.” From time to time Levering, and on one occasion Scheel, gave orders for the goods in question. They were charged to the General Flooring & Mfg. Co., by direction of Levering, and as they were delivered a slip containing an itemized statement of the goods was sent with each delivery, all of which slips were headed “Merchandise delivered to General Flooring & Mfg. Co.,” and were signed, “Received by General Flooring & Mfg. Co., per Levering.” Levering testified in chief on behalf of the plaintiffs that he was employed by the General Flooring & Mfg. Co., and was the only person employed at the mill, that he received all the goods and that they were used in the repair of the mill. In answer to the question put on cross-examination “Who employed you?” he replied, “R. O. Scheel,” but this answer does not necessarily imply a
In conclusion, without further recital of the evidence, it is the judgment of the court that the finding of the learned judge below was amply warranted.
The assignments of error are overruled and the judgment is affirmed.