17 Pa. Super. 188 | Pa. Super. Ct. | 1901
Opinion by
This case may be best disposed of by considering the assignments of error seriatim.
1. This offer by defendant to show, by parol, the circumstances which led to the order for cables introduced by the plaintiff was clearly admissible. 1 “ Parol evidence is admissible to alter, vary or contradict a written instrument where such evidence establishes an oral agreement contemporaneous with the execution of the written, and on the faith of which the instrument was executed : ” 6 P. & L. Dig. of Dec. 10244.
2. The entire charge is assigned for error. We gather from the argument, however, that the assignment is made upon the ground that the charge was misleading, and that the theory of the law governing the questions which arose in the case was erroneous. As these questions, however, are raised by the points for charge submitted by the plaintiff and the answers thereto, they are fully covered by what is said in regard to the subsequent assignments.
3. The questions.raised by the third and fourth assignments relate to the authority of Ewing & McCrum, the brokers who sold the defendants the cables, to make an express warranty as
4. Although the answer to the plaintiff’s fourth point seems to be in effect an affirmance of it, it is not consistent. It begins with the distinct affirmative statement that “ One break would not, under the circumstances, be sufficient to justify the defendant in throwing the cable used at the Kenton well aside.” This, it is true, is qualified by what follows: “ But, if the defendant or his employees examined the cable after its first break and found it to be imperfect in either material or workmanship, and after that continued to use it and the accident happened thereafter, the continued use was at. defendant's risk and no recovery can be had in this case for loss sustained
5. The answer to the plaintiff’s sixth point should have been qualified. It sufficiently shows the character of the point, and was as follows : “ If Ewing & MeCrum warranted the cables to be as good as New York or Philadelphia cables or any other cable on the market, and the cables were not as guaranteed to be, the plaintiff would be liable for any loss sustained by defendant as the natural and proximate result of the furnishing an inferior cable.” To this should have been added the qualification, “ unless the defendants in some way contributed to that loss by the use of the cable, after they had discovered it to be of an inferior quality and unfit for the purpose for which it had been sold.”
The fifth and sixth specifications of error are, therefore, sustained. All the others are overruled.
Judgment reversed and a new venire awarded.