Hoffman v. Gemehl

Citations

• 266 Pa. 498
• 109 A. 755
• 1920 Pa. LEXIS 597

Syllabus

<p>Contract — Sales—Oral agreement — Secret discount — Evidence— Cashbook entries — Book not in evidence — Striking out evidence — Charge of court — Comment-on failure to produce evidence.</p> <p>1. In an action to recover a balance on sale of automobiles, defendant set up an oral agreement wherein plaintiff, as an inducement to the purchase, agreed to pay defendant a secret discount of three per cent on the price. To establish this, defendant’s bookkeeper testified that he had made an entry in the cashbook of such payment of three per cent, but that he had not the book in court. On motion the testimony as to the entry in the book was stricken from the record, but the evidence as to the fact that a book existed as a cashbook and that entry was made therein was not stricken out. Held, that the court committed no error in commenting on this matter in its charge as follows: “When a matter is referred to [by a witness] which is pertinent and relevant and valuable evidence, if the evidence is not produced in court to corroborate the statement of the witness, the jury have a right to question in their mind whether or not the book or the paper or the bit of evidence would corroborate the witness, if it was produced in court. There is no explanation of why the book is not here, and the defendant ought to have explained it. Therefore, to my. mind, the evidence to the effect that an entry was made in the book is of very little value.”</p> <p>2. In such a ease, while the corroborating evidence was cumulative, it was, nevertheless, important, material and convincing, if true. If the book had been produced in court, showing an entry, it would have been strong evidence in support of the oral inducement made at or about the time the cash payment was alleged to have been placed in this book of many daily transactions. The difficulty in fraudulently making up a book of this kind would lend strength to the truth of the entry. The observation in the charge was perfectly proper. It did