33 Pa. Super. 506 | Pa. Super. Ct. | 1907
Opinion by
The plaintiff declared in assumpsit that on September 17, 1903, the defendant gave the plaintiff two written orders for show cases; that the plaintiff accepted the orders; that the show cases were delivered to and’ received by the defendant, and that he refused to pay the price agreed upon. Upon the second trial of the case, and after the motion for compulsory nonsuit had been made, the plaintiff presented the petition for amendment of its statement of claim which is set forth in the first assignment of error. The petition does not show how the “ mistake or inadvertence ” occurred which resulted in the omission of the averment proposed to be inserted in the statement. But further, the proposed amendment is not in matter of form but in a matter of substance. It would not be difficult to show that it averred a substantially different cause of action from that set up in the original statement of claim. The amendment was not such as the plaintiff was entitled to under the statute as matter of right, and, under the circumstances, we are not prepared to hold that there was an abuse of discretion in not permitting it.
The facts are that the plaintiff did not deliver to the defendant four show cases, but did ship by rail consigned to the defendant several crates of parts, which when “ set up ” would be show cases, and that within twenty-four hours after these crates of parts were placed in defendant’s store, they were consumed by a fire which destroyed the store as well. The plaintiff’s shipping derk testified upon the subject of shipment as follows: “ On October 22, we shipped one crate of frames, roofs and bases, two crates of bases and one box of hardware, and on October 23rd four cases of plate glass, two boxes of glass, one crate of marble ; the two shipments being all of the goods which are necessary for two outside cases and two special cases, and comprise the order given by John H. Ladwig of Scranton, Pennsylvania, to the Diamond Glass Company on the 17th day of September, 1903.” Manifestly, the delivery of these parts out of which the show cases could be constructed
But, it is contended, notwithstanding the express stipulation of the written order that “ there is no condition or understanding relative to the above order that is not specified therein,” that the court erred in rejecting the defendant’s offers to show, first, that the trade meaning of the words “ to
The judgment is affirmed.