Stuckslager v. Neel, 123 Pa. 53

123 Pa. 53 | Pa. | 1888

OPINION,

Mu. Justice Green :

The plaintiff alleges that the main question was whether there was a sale of the flats, and that he asked the jury to find merely the difference between $3,700, the amount of Neel’s claim, and the selling price of the flats. So far as we can discover from the charge of the court and the statements and arguments of counsel, the controversy seems to have been conducted upon the proposition that the transfer of the flats was a fraud upon Kraft’s creditors.' The chief subject of the charge of the court was in relation to the allegation of fraud. No points were submitted to the court by the counsel on either side, and hence we cannot know whether the court was specifically asked to view the transaction in the aspect of a sale without collusion, and a claim by the plaintiff for the balance due upon such sale, and therefore the plaintiff is not in a position to complain of error in the court for not submitting the case in that point of view to the jury. In truth, it would make little, if any, difference, whether that course was pursued or not; because the court did, with entire fairness and correctness, submit to the jury the question whether the transfer of the flats was made for the purpose of hindering, delaying, and defrauding creditors, or whether it was a bona fide pledge, made for the legitimate and honest purpose of seeming the defendant Neel for an actual, true indebtedness due to him by Kraft.

We do not doubt for a moment tbat such was the real character of the contest as it was conducted before the court and jury. The court distinctly told the jury, that if the transaction was a scheme to defraud creditors, it was void and they could render a verdict in favor of the plaintiff for the whole value of the flats; but if it was a transfer for the purpose of security merely, Neel had a right to retain the flats until he was reimbursed. Under this charge, whether the transfer was a sale or a pledge, if it was a fraud the plaintiff could recover, and as the jury has rendered a verdict in favor of Neel, they certainly found that it was not a fraud. . An examination of the testimony satisfies us that the verdict was in accord with the preponderance of the evidence. That Neel had a perfectly honest and valid claim against Kraft for $8,700, is beyond all question. There is no evidence in the case which impeaches it in the slightest degree. If the plaintiff had desired the instruction of the court upon the effect of a lawful sale without fraud, he could easily have obtained it by presenting a point upon that subject, but he seems to have preferred the satisfaction of indulging in accusations of fraud, and of course he must abide by his position. Possibly he had a better chance of success in that way than in the other. It is immaterial, however, to consider this subject, since the jury has found, upon ample testimony, that the transaction was a lawful pledge, made without fraud, and the verdict concludes both the parties and the courts upon that question.

Error is also assigned to the rejection of an offer to give in evidence the entry of the transaction made by the bookkeeper upon Kraft’s books. The purpose of the offer is thus expressed : “ In view of the fact that Moore and Neel, by collusive bargain, sold these flats and passed a bill of sale-” The only argument presented in support of the offer is that books of original entry are admissible to prove sales of merchandise. But it is apparent that the entry is not competent for that reason, because it was not a sale of merchandise at all, but a special transaction, a sale of fifteen river flats, the seller not being engaged in that kind of business. It would be just as competent to prove the sale of a house or any specific chattel by a book entry as to prove the sale of these flats in that manner. The rule is perfectly familiar, and is illustrated in the case of Shoemaker v. Kellog, 11 Pa. 810, in which we held that books of original entry are not evidence of the casual sale of an article not in the course of the party’s business, and of which it is usual to take other proof or evidence of sale. It was the sale of a mare regularly entered upon a tradesman’s books, but excluded by the court below and sustained by this court. Bell J., said : “ It is almost too trite to repeat that books of original entry are evidence only from necessity, and ought never to be received where the transaction from its nature admits of more satisfactory proof. They are receivable to show goods sold and put down in the course of the ordinary business or pursuit of the party offering them. But it would be dangerous to open the door of admission wider than this.” See, also, Corr v. Sellers, 100 Pa. 169.

But there are still more cogent reasons why the entry was not admissible. It was secondary evidence only, and of a most inferior order at best. The person who made the entry was himself a witness in the cause, and testified on behalf of the plaintiff to his whole knowledge of the transaction. That testimony was competent and was primary. Its importance depended upon its character and the credibility of the witness. But its competency does not depend in the least degree upon the fact that ho made a written entry or memorandum of the transaction at the time. He could testify directly and in person to any fact he entered on the books, and that testimony would be the original, primary, and, therefore, only legal evidence of the fact in question. Moreover, this particular transaction was evidenced by two bills of sale, and they are the proper written evidence of what it was. These were given in evidence, with the full testimony of all the parties, including the bookkeeper, in relation to them; and the bills of sale, with all the oral testimony affecting them, and the transaction itself, were before the court and jury, and were fully considered and passed upon by both. Independently of these considerations, the entry in the books of Kraft was not made by his direction, or with his knowledge or consent, and, therefore, it would afford no basis of inference as to his purpose, nor was it made in the presence, or with the knowledge or consent, or by the authority, of Neel, and therefore, it could afford no proof as to his purpose. It must also be remembered that this was not an action for goods sold and delivered, by the seller against the buyer, and the evidence of the entry was not needed in support of such a claim. On the contrary, the agent of the seller who made the transfer in question, was examined as a witness, and on behalf of the plaintiff, and he testified most positively and emphatically that the transaction was a pledge and not a sale. In no point of view, therefore, was the book entry competent evidence.

Judgment affirmed.