48 Pa. Super. 636 | Pa. Super. Ct. | 1912
Opinion by
This action of assumpsit was brought to recover a balance alleged to be due for printing and lithographing done by the plaintiff for the defendant. The defendant set up, as one branch of its defense, that the work was done so imperfectly that the goods delivered were not salable; that upon complaint being made by the defendant at the time of delivery, the parties orally agreed that the defendant should sell such of the goods as it could, and at the end of the year, to which time settlement was to be postponed, should pay for such as it had sold, and have credit for such as it was unable to sell; and that, at the end of the year, settlement and payment of the claim on this basis were made. There being a conflict of testimony as to the making of this alleged oral agreement and the settlement pursuant to it, the court properly submitted the question to the jury, and of this and of the manner of submission the appellant makes no complaint. The verdict of the jury, therefore, must be taken as settling the question adversely to the defendant’s contention.
The question of defectiveness was also submitted to the jury, but with the qualifying instruction that, though they found the fact, yet it would not constitute a defense, if they found that the work “was passed upon and approved by the defendants,” or, as the learned judge expressed the idea in the same connection, that it was “defective as a consequence of the inspection and approval of the defendants.”
The other question arises out of the admission of certain letters written by the plaintiff to the defendant, and other letters written by the defendant to the plaintiff, which it is claimed made the contract or contracts between the parties. The objection made to the admission of these letters was that it involved a variance between the proofs and the pleadings. The plaintiff declared for lithographing and printing done “for the defendant at its special instance and request, and for which defendant agreed to pay.” Attached to the declaration was an exhibit purporting to be a true and accurate copy of the book account between the parties, taken from the plaintiff’s books of original entries. This showed the dates and items of work done and the prices charged for the same; and it was averred in the statement that the prices charged are the usual market prices. • The letters referred to were not attached to the statement, but it is to be noticed that the defendant filed an affidavit of defense without raising the objection that they were not attached, and the objection was made, for the first time, after the plaintiff’s book of original entries had been rejected as evidence of the claim. It is to be noticed further, that some of these letters were in the plaintiff’s possession, and others were in the defendant’s possession, the latter being produced, on call made at the trial. The case relied upon by the appellant’s counsel, as sustaining their contention that there was a variance, is Wilkinson Mfg. Co. v. Welde, 196 Pa. 508. The point there decided was, that where in an action of assumpsit the defendants deny in their affidavit of defense that they executed the contract sued upon and plead non assumpse-runt, and at the trial produce, in pursuance of notice, the real contract, the plaintiffs will not be permitted, unless they amend their statement, to offer the same in evidence, it being materially different from the one declared on. Briefly, the plaintiff declared on a written contract, and attempted to recover on a written contract materially
All the assignments of error are overruled and the judgment is affirmed. -