Shaw v. Fleming

Citations

• 174 Pa. 52
• 34 A. 555
• 1896 Pa. LEXIS 844

Syllabus

<p>Contract — Broker—Evidence— Bale.</p> <p>In an action to recover the price of yarn alleged to have been sold by plaintiffs to defendant, defendant claimed that he was a mere broker in the transaction, and that the yarn had been bought for B. to whom it had been delivered. Plaintiffs’ suit was based on an absolute sale of the yam to defendant; the pleadings were adapted to it, and all the evidence submitted was offered and received for the purpose of establishing it. Defendant on cross-examination stated that after some of the yam had been delivered to B. one of the plaintiffs asked him, (the defendant,) if he would guarantee the account, and that he replied that he would if the yarn was up to sample. Held, (1) that under the pleadings there could be no recovery upon a guaranty, if one existed; (2) that the important controlling question in the case was whether the defendant was a purchaser of the yarn; (3) that in determining whether the defendant was the purchaser of the yam, it was proper for the jury to take into consideration bills rendered by the plaintiffs to the defendant and the latter’s failure to make any objection to them, letters written by B. to defendant, and immediately forwarded by him to the plaintiffs, and interviews between plaintiffs and B. in regard to the quality of the yam, and the loss to the latter in working it up.</p>