45 Pa. Super. 395 | Pa. Super. Ct. | 1911
Opinion by
This action was for the value of a quantity of steel scrap which the plaintiffs allege the defendant received from them in Philadelphia for transportation to the Alan Wood Iron and Steel Company at Ivy Rock and failed to deliver. After the car was received the iron and steel company reported to the plaintiffs a shortage in weight, whereupon the plaintiffs asked that company for the scale ticket.and an affidavit of weight covering the shipment. In compliance with this request the iron and steel company forwarded to the plaintiffs the affidavit of Charles J. Gaul, weighmaster of that company sworn to June 29, 1904, and a part of a scale ticket. Mr. Gaul was called as a witness by the plaintiffs to prove the weight of the steel received by the consignee. He did not have a present recollection of the weight of the car, but' had in his hand while testifying the affidavit which he had made in 1904, from which the counsel for the plaintiffs proposed to have him refresh his recollection.
The second assignment relates to the refusal of the court to admit in evidence the part of a scale ticket which was offered to support the claim. The ticket did not contain the number of the car nor any marks to show that it related to the plaintiff’s freight and when the witness, Gaul, was questioned about the ticket he said: “I cannot say that is the ticket. No, sir.” When interrogated as to the disposition made of the scale tickets after the cars were weighed the witness said “As soon as these tickets are marked they put them in a bundle and file them away.” The witness did not know when nor how the ticket in question got into the possession of the plaintiffs. He did say that he knew it related to the car in question because of the way it corresponded with the affidavit made by him, but that was, of course, a conclusion of the witness not from his recollection but from the identity of the weight stamped on the ticket and the weight set forth in the affidavit and he was unable to connect the ticket with the transaction in any other way. As the case stood at the time the ticket was offered there was a failure to identify it or connect it with the transaction and the court was not in error in rejecting the offer. As this closed the plaintiffs’ case on the subject of the shortage of weight when the car was delivered there was an entire failure to make out a case and the nonsuit was properly granted.
The judgment is affirmed.