Stockwell v. Loecher

9 Pa. Super. 241 | Pa. Super. Ct. | 1899

Opinion by

William W. Porter,

The first three specifications of error relate to the admissibility of the following offer of evidence, “ the plaintiff’s counsel offers in evidence the record of this case and calls particular attention to the affidavit of defense for the purpose of showing the authority of Mr. Seidel.” It will be observed that the purpose of the offer was to get the affidavit of defense before the jury. This might have been done by the offer of the affidavit alone, under the authority of Bowen v. De Lattre, 6 Wharton, 430. Objection, however, to the offer was not because of the purpose, but because of the form. The defendant complains because the whole record (including the statement of claim) was admitted. It was not shown that the defendant was in any way injured thereby. The offer was, in effect, restricted in purpose to the affidavit of defense, which was clearly admissible as evidence when offered by the plaintiff, as showing an admission by the defendant: Bowen v. De Lattre, supra. The first three assignments of error are without merit.

There was manifestly in this case, a question of fact, namely, as to the authority of the agent to rescind the contract of sale between the parties. The trial judge was therefore-right in refusing to direct a verdict for the defendant. The fourth assignment is not sustained.

The letter of Seidel was held by the trial judge to be a rescission of the contract between Loecher and Smith. It was a writing which was for the court to construe. The construction placed upon it is the right one. In construing the paper the trial judge was careful to call the attention of the jury to the fact that the question of the authority to write the letter was for them. The sixth assignment of error is not sustained.

The defendant, Loecher, testified that Seidel had no authority to rescind the contract with Smith. Seidel testified, however, that he, in the course of the business in which he was employed as agent, believed that he had authority to act for Loecher in concluding or rescinding the contract. The further fact appeared that letters written by Seidel, extending the time for settlement, were approved by Loecher, and that Loecher did not repudiate Seidel’s letter of rescission. A part of the charge applying to this branch of the case forms the subject of the fifth assignment. The sentence of the charge, concluding this assignment, is not complete. It is cut off at a point which excludes explanatory matter. Taking the part of the charge assigned, in connection with what follows, we are of opinion that no error was committed, as alleged in the fifth assignment.

All of the assignments are, therefore, dismissed, and the judgment of the court below is affirmed.