Argued April 10, 1923.
The plaintiff brought suit to recover the price of a carbide generator, fixtures and fittings sold to the defendant under a written contract. This contract contained a provision that it could not be altered or modified except by an agreement in writing between the purchaser and the seller. The plaintiff agreed to furnish the generator and to install it. An affidavit of defense was filed in which the defendant avers that the plaintiff at the time defendant purchased the generator, asserted that it would only consume 300 pounds of carbide a year, whereas it consumed 1,800 pounds in four months, and that the large amount of carbide required was due to the careless and improper installation of the system or its defective character and that of the twenty-seven lights comprised in the system only five were in operation and those only for a short period of each day. The defendant gave notice of the defect to the plaintiff who tried to eliminate it, but failed to do so, and after such failure, it was told to remove the system from the premises.
The learned judge of the court below declined to enter judgment for the plaintiff and we think rightly so. It is true there was not sufficient allegation in the affidavit of defense to sustain the varying of the terms of the written contract by a contemporaneous verbal agreement, see Wright v. General Carbonic Company, 271 Pa. 332. There is enough in the contract set forth in plaintiff's statement to cast upon it the duty not only to furnish a generator of good workmanship, but also to install it. There can be no doubt that the plaintiff knew the purpose to be accomplished by the generator when installed. The affidavit of defense alleges that the system did not perform its purpose and that only five lights, as noted above, could be operated. Under the Sales Act of May 19,
1915, section 15, paragraph 1, P.L. 543, "where a buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose." We think the defendant has a right to go to trial before a jury and to prove, if he can, that the generator he bought, was improperly installed by the plaintiff and in consequence, did not reasonably fit the purpose for which it was bought. Under the Sales Act the seller must be advised of the defect after the buyer "ought to have known" and under Wright v. General Carbonic Company, supra, the affidavit of defense should designate when the discovery of the defect in quality was made and when and how notice of the fact was given to the seller, but we think the averment that the notice given by the defendant to the plaintiff was followed by an attempt on its part to remedy the defect would supply the want of an allegation as to how the notice was given. That he acted upon such a notice is evidence that he received it.
The assignments of error are overruled. The appeal is dismissed without prejudice. The appellant to pay the costs.