Perry v. Jensen

Opinion,

When this case was here before, Jensen v. Perry, 126 Pa. 495, we held that it was error to reject proof that the quantity of samples furnished by Jensen, prior to the demand in August, 1886, was more than reasonably sufficient for the whole year’s operations. We further said that “the agent may demand what is fairly and "reasonably sufficient for the purposes of his *135undertaking, and no more.....What is a reasonable quantity of samples for the purposes of the contract is, if the parties cannot agree about it, a question of fact to be settled by a jury.” Of course, such a question would have to be determined by testimony, and the testimony of persons acquainted with the business of distributing samples of goods of this class would be essential to the proper information of the jury. In point of fact, such testimony was delivered on the trial, but some of that which was offered by the defendant was rejected, and of this complaint is made more especially in the third and fourth assignments of error.

To the witness Lovey the defendant put the following question: “ Q. Is or is not 431,000 samples of medicine like this, for the cure of dyspepsia, a reasonable or unreasonable number for distribution in any one year ? ” This was objected to, but no ground of objection stated, and the objection sustained, but for what reason is not stated. If the witness was incompetent because he had not shown sufficient experience to be able to testify, his rejection was proper; but if that does not appear, the question should have been admitted. Upon turning to his preliminary testimony on the subject of his competency, we find that he testified he had been in the advertising business since 1865; that he had experience in the distribution of pamphlets, and medical articles for general consumption; that he had distributed pamphlets for Dr. Palen, Drs. Starkey & Palen, for tlie Real-Estate Investment Company, and all of Mr. Goodman’s publications; that his experience as a distributor had extended beyond Philadelphia, and that he had distributed samples and pamphlets in Chicago, Baltimore, and in Ohio. We cannot say of such a witness that he was entirely incompetent to testify in answer to the question propounded. Possibly his experience was not as great or his judgment as good as that of other witnesses having a larger experience, but that would be a matter to be determined by the jury after his testimony was heard. He would not be incompetent, because he did have experience in the matter of advertising medical articles, and in the distribution of samples and pamphlets relating to them. We think it was error, therefore, to reject the question altogether.

And so, also, as to the fourth assignment. The witness, *136Herbert L. Ford, testified that he had had experience in putting out articles for general and special consumption, by sample, advertising, and otherwise. He said further: “About January 1,1886,1 was retained as general manager of the New York & Chicago Chemical Company. During the succeeding year, the article of infants’ food was brought to my attention, and a copartnership formed to place it on the market. In the pepsin business, we did a large amount of sampling in the trade among the druggists. In the food business, we made distribution of sample packages from house to house, worked through the mail, and by other methods.....We sent circulars and have distributed samples, attended public exhibitions, and made displays of preparations, and had contests to show their efficiency.....We have distributed, I should suppose, at least a half million circulars throughout the United States, from first to last.” In reply to questions by the court, the witness said he had not distributed from house to house all over the United States, but he had distributed throughout the United States, not by universal sampling, but in localities; that he was interested both in the food and pepsin preparations, and that the pepsin was delivered to the druggists, and the food to the trade and in localities. The learned court below thought the witness had not sufficient knowledge to testify as an expert, in reply to the question as to the sufficiency of 431,000 samples of an article like Jensen’s Pepsin Tablets as a reasonable quantity for distribution in any one year, and rejected him as a witness. We think the witness was competent, and that the objection of want of sufficient experience or knowledge would go to the effect of his testimony, and not its competency. We sustain the third and fourth assignments.

The plaintiff had proved that he did a large part of his distribution through the American District Telegraph Company. The defendant disputed the efficiency of that mode of distribution, and offered to sustain his contention by the testimony of a witness, Goodman, who had testified to his experience as an advertiser and distributor, and to his acquaintance with the methods pursued by the company in question. His testimony was rejected. It could hardly have been for lack of knowledge and experience; and, as the offer was to prove that that method of distribution was not the best reasonable endeavor of the *137plaintiff to make distribution, it could not be said that the offer was irrelevant. By the terms of the contract, Perry was to use his “ best reasonable endeavors to introduce and sell ” the pepsin throughout the United States, and to devote his entire time and attention to that purpose. His methods of distribution, therefore, were directly in issue, and were liable to be impeached by the defendant if that could be done. We think the witness had sufficient knowledge and experience from which to testify on this subject, and that it was error to reject the question propounded under the first assignment.

We think the offer covered by the second assignment should have been received, as its tendency was to show that, whatever methods of distribution were adopted by the plaintiff, they were not efficient, so far as the city of Philadelphia was concerned. The complaint of the witness to Dr. Jensen, however, would not be competent, and that part of the offer should be rejected. The second assignment is sustained, except as to the communication to Dr. Jensen.

The fifth assignment is not sustained. The question of Brill’s competency and reliability as a pepsin maker is not involved in this controversy, and it is therefore irrelevant.

The sixth assignment is not sustained because the learned court below, in other parts of the charge, correctly said to the jury that, if the plaintiff’s demand for more samples was unreasonable and oppressive upon the defendant, he could not recover merely because the defendant refused compliance with such a demand; and the number already furnished, 400,000 and upwards, was stated in the charge. Whatever was demanded beyond that was left to the jury as being within their province-to determine, in support of the allegation that the number-demanded was unreasonable. There was some evidence in the-case as to the reasonableness of a demand for 1,200,000, and the court simply said in this part of the charge that the jury must determine whether such a number would be unreasonable. It is true, it does not appear that such a number was specifically demanded by the plaintiff, but he did call for several hundred thousand more than the 481,000 already delivered, in his letter of August 3, 1886.

We are obliged to sustain the seventh assignment, because, literally the contract did require that, in addition to the sain*138pies, Dr. Jensen should furnish “ printed matter in the nature of advertisements relating thereto,” and that was an additional expense to which he was subject.

A similar reason requires us to sustain the eighth assignment. The learned court was slightly in error in stating Jensen’s testimony to the jury. His testimony, as actually delivered, does not show that “ he said to Perry that he had machinery which could make 25,000 a week,” but only that he “ could construct machinery to make 25,000 samples per week.” As this discrepancy might be material with the jury in considering the quantity which the defendant was reasonably bound to furnish, we cannot say it was harmless to the defendant for the court to state Jensen’s testimony on the subject incorrectly' in the charge.

The ninth assignment is not sustained. We are not referred by the appellant to any testimony tending to show that the statement of the court in this part of the charge was incorrect, and' we have not discovered anjn

We see no error in the answer of the court to the defendant’s fourth point, and therefore dismiss the tenth assignment. It would not follow that the verdict should be for the defendant if the plaintiff was ignorant or unskilled in the business, and refused to take advice from others having a knowledge of the business. The practical question for the jury was whether Perry performed his part of the contract, and whether he did or not was to be determined by the jury, and so the court charged in answer to this point.

The same consideration is applicable to the defendant’s fifth point. It was not a question whether the plaintiff told the defendant that he had' a friend worth a million, who would go in with him, and that no such person did go in with him, but whether or not he performed his part of the contract. The considerations which pertain to that subject were fully and correctly expressed in the answers of the court to the ninth and tenth points of the defendant, and in the general charge. The eleventh assignment is not sustained.

There was no error in the answer of the court to the defendant’s sixth point, and the twelfth assignment is not sustained.

Judgment reversed, and new venire awarded.