149 Pa. 351 | Pa. | 1892
Opinion by
Where there is a sale upon trial, with a time fixed by the parties, a failure to return the goods or give notice in accordance with the agreement makes the sale absolute: Dewey v. Borough of Erie, 14 Pa. 211; Hickman v. Shimp, 109 Pa. 16; Stutz v. Coal Co., 131 Pa. 267; Benj. on Sales, § 595. This was the effect of the contract between the parties to this controversy. A period was fixed within which the test of the furnaces was to be made, which period was to be extended for two months if desired in writing before the first limit was reached. The learned judge correctly instructed the jury as to the contract and the necessity of notice by the school board within the stipulated time, that the furnaces did not meet the requirements, and the only substantial question we have before us is the sufficiency of the evidence as to such Aotice. This depends entirely on the testimony of Lentz the secretary of the school board. His testimony on this point is very brief, and in substance that at some time in the winter of 1888-9, whether before or after January 1st (the first period fixed for the trial) he could not say, he accidentally met one of plaintiffs, and told him “ there was some complaint, and he said of course the fur
The resolution of the board and the correspondence after March were rightly held by the learned judge to have no bearing on the case. We see no error in the trial except the submission of the evidence of notice to the jury. On that evidence and the undisputed facts they should have been directed to find for the plaintiffs.
Judgment reversed and venire de novo awarded.