Smith v. E. M. Cohn & Co.

Citations

• 170 Pa. 132
• 32 A. 565
• 1895 Pa. LEXIS 1373

Syllabus

<p>Oontract — Delivery—Evidence—Nonsuit.</p> <p>Plaintiff sold defendants a lot of tobacco to be delivered in good merchantable order. Before it was delivered, a portion of it was damaged by rain. Defendants demanded that the damaged tobacco should be separated from the rest. Plaintiff refused to agree to this. Defendants then declined to accept the tobacco, and said they would not take it, unless plaintiff would sell it at one third off the price named in the contract, or take it to the place of delivery and allow it to be sorted. Plaintiff finally accepted a check for two thirds of the contract price, and left the tobacco in possession of defendants just as it was. Subsequently plaintiff brought an action on the original contract. Held, that as he showed by his own testimony he was not able to deliver the tobacco in the condition required by the contract, he was not entitled to recover, and that a nonsuit was properly entered.</p> <p>An offer to prove by the plaintiff that he never took or accepted the check in full of the tobacco, but only on account, was inadmissible. Such evidence was in effect an offer to lay before the jury the conclusions of the witness from the facts which he had already stated. What conclusions should be drawn was a question for the jury if the facts were in dispute, and for the court if they were not in dispute.</p>