235 Pa. 412 | Pa. | 1912
Opinion by
We think the learned court below erred in placing the burden on the plaintiff of showing what part of the orchid blooms sold by Pennock belonged to her and for which she was entitled to have an accounting. The defendant had been for several years the head gardener of the plaintiff and delivered the blooms to Pennock to be sold in the plaintiff’s name. The defendant failed to account for the blooms sold, and the plaintiff brought this action. She makes two claims: one of $1160.99 for blooms sold for which there was no accounting by the defendant, and another for a balance of $265.60 due for blooms authorized by her to be sold and for which there was a partial accounting. The defense to the first claim was that the blooms were a gift by plaintiff to the de
The learned court instructed the jury that the burden was upon the plaintiff to show that all the blooms sold by the defendant belonged to her and that no part of them belonged to the defendant or came from his greenhouse. The plaintiff offered in evidence Pennock’s account with the defendant which showed the several items of blooms sold by Pennock for the defendant and the dates on which the sales were made. This statement was conceded to be correct. If nothing else had appeared in the evidence the defendant would have been required to account to the plaintiff for the balance due on the sales shown by that account. He had partially accounted to the plaintiff for the blooms sold by her orders. As to the balance alleged to be due the plaintiff on this claim, his defense was twofold: that part of the blooms came from his own green-house and that the plaintiff had made a gift to him of the others. Under these circumstances, the burden was clearly upon him to show what blooms of those sold belonged to him. He was the employee and the agent of the plaintiff in making the sales through Pennock. He knew or should have known what blooms came from Mrs. Wilson’s green-house and what came from his own green-house. It was his duty to keep an accurate account. They were sold by the defendant in his own name. There is nothing in the Pennock account showing the number of blooms which belonged to the plaintiff and which belonged to the defendant. The evidence of the fact is
The learned court below charged that “if all of the blooms which Mr. Pennock sold belonged to the plaintiff that part of her case would be fully made out; but just to the extent that she leaves that question open just to that extent there is derogation from her proof. I don’t recall any evidence as to the quantity of these blooms which Mr. Pericat (defendant) himself may have owned.” Under these instructions the jury would have been warranted in finding that all the blooms claimed by the plaintiff came from the defendant’s green-house and such a finding would have defeated a recovery by the plaintiff. Of course, if the jury had found that all the blooms not accounted for were given to the defendant, the instructions were harmless, but the jury may have found under the charge that none of those -blooms were given to the defendant but that he owned them because the plaintiff failed to show that they belonged to her. The jury should have been told that, in view of the evidence then before them, it was incumbent upon the defendant to show what blooms, sold by him and contained in the Pennock account, came from his green-house or
The first, second, third and fourth assignments of error must be sustained. The questions raised by the other assignments need not be considered in view of the fact that the case goes back for another trial.
The judgment is reversed with a venire facias de novo.