128 Pa. 442 | Pennsylvania Court of Common Pleas, McKean County | 1889
Opinion,
The defendant, C. P. Stevenson, at the time the matters involved in this suit occurred, was a member of the Bradford oil exchange, and was engaged in buying and selling oil on his
Acting upon these quotations the defendant had various transactions in the purchase and sale of oil, which were conducted by telegrams transmitted over the plaintiff’s lines, for which telegrams he paid or agreed to pay at certain specified rates. In establishing his set-off, the defendant certainly had a right to show what quotations were given him by the company from the New York and Oil City exchanges, and what he did relying upon their accuracy; that he dictated certain messages for transmission over the company’s lines, directing the purchase and sale of oil by his agents, and received from the operators of the company certain messages in reply. The correspondence was notice to the company that the defendant acted upon the quotations given. When the defendant says that he bought or sold a certain number of barrels of oil in Oil City or New York, he states that he was not present in those places at the time, but that he directed such purchase or sale by telegram over the company’s wires. What he speaks of doing in Oil City or New York, he admits that he merely directed to be done; but he afterwards states that he knows what he directed to be done was done, for the oil bought or sold was actually delivered, the various transactions settled, and the money received or paid out in accordance with his directions. The testimony of the agents who- effected each of the several sales and purchases of oil, or of those with whom the agents dealt, would doubtless have afforded more direct proof of the fact, but it would have been proof of the same
In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule excludes only that evidence which itself indicates the existence of more original sources of information; but where there is no substitution of evidence, but only a selection of weaker instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not impinged: Greenleaf, 82. The warden of a penitentiary would perhaps be able to give the strongest proof that a person had been, at a particular time, a convict imprisoned in the penitentiary, as he keeps a registry in which is noted the exact time of the admission and discharge of the convict; but the fact may be shown by any other competent proof: Howser v. Commonwealth, 51 Pa. 332. The date of a birth, or death, or of a marriage could best be established by a person present at the event, but any other legal proof is admissible for the purpose. Handwriting may be proved by another, without calling the writer; or a sale of oil or of any other commodity may be shown by the acts or declarations of the parties, although a witness may have been actually present and fully conversant with the whole transaction. As between living witnesses, one is not to be excluded because another had a better opportunity of knowing the fact alleged and attempted to be shown. We are of opinion, therefore, that the evidence of the defendant, although perhaps not the strongest proof, was sufficient to send the case to the jury, on the questions raised by the defence.
The defendant alleges, as the first matter of the defence to the plaintiff’s claim, by way of set-off, that on the morning of the 8th of July, 1885, he had on hand about 97,000 barrels of oil; that the market at first advanced, and he bought 40,000 more; that the market then indicated a break, and he gave to the company a verbal message to his agent at Oil City, to sell 50,000 barrels at 97|; that the company failed to send the message as directed, but instead negligently sent a message to the
The defendant further claims damages sustained by reason of a misquotation of the market at Oil City. On August 3, 1885, oil at Oil City was quoted to the defendant at 99 and a fraction. Relying upon the accuracy of this quotation, the defendant ordered his agent at Oil City to sell 90,000 barrels. It turned out, however, that the quotation furnished was inaccurate, and the loss was $713.35. As the company had contracted to furnish the defendant the quotations of the New York and Oil City markets, it was bound to furnish them with accuracy, and the defendant was justified in relying upon them. The questions bearing upon this branch of the case have already been considered, and we do not wish to repeat what has been said.
Judgment is affirmed.