252 Pa. 244 | Pa. | 1916
Opinion by
We are not inclined to interfere with the disposition of this case by the court below. The learned judge properly criticised the pleadings and trial of the case as “a very slovenly practice.” There were technical errors committed in the trial of the cause on which the judgment might be reversed, but an examination of the record and the evidence convinces us that substantial justice has been done between the parties, and we will therefore, not disturb the judgment. The cause of action accrued in 1908, and the case should not be retried after this length of time unless it clearly appears that such error occurred on the former trial as affects the merits. The individual defendants, the appellants here, were duly summoned, appeared by counsel, entered a plea denying liability on the cause of action set forth in the statement, and were represented by counsel at the trial. They had every opportunity to defend themselves on the merits of the case. Unless, therefore, as observed above, the court can be convicted of some error which is not simply tech
The action was brought to recover a balance due the plaintiff for work done under a written1 contract and also for an amount alleged to be due under a parol agreement with the Cambria Lumber Company. The written agreement was executed and signed by the defendant company by two of the individual defendants as president and secretary, respectively. The caption of all the pleadings in the case reads: “Hugh I. Noel against William A. Kessler, Harvey F. Botsford, Harry N. Michael, formerly trading and doing business as Cambria Lumber Company.” The summons was issued against and served on all the defendants. The statement averred that the plaintiff entered into a written and parol contract with the Cambria Lumber Company without averring that it was a partnership composed of the individual defendants or that they were parties thereto or interested therein. On the trial of the cause the plaintiff offered the contract in evidence, and the offer was objected to because it did not show any liability on the part of the individual defendants. The objection was overruled and the agreement was admitted in evidence. The first two assignments allege error in the admission of this evidence. As the statement did not disclose that the individual defendants were parties to the contract, of course the evidence did not tend to prove their liability to the plaintiff, and was, therefore, not competent and might have been excluded. The statement filed in a case must allege liability on the part of the defendants and the proof must sustain that liability. The burden was on the plaintiff to show that these individuals constituted the partnership trading under the name of the Cambria Lumber Company. Until that fact appeared, the agreement offered in evidence imposed no liability on the individual defendants. If, therefore, when the offer was made there was nothing else in the case than that which was disclosed by the contract, the objection should have
We think the evidence, the admission of which is the subject of the third and fourth assignments of error, was admissible. It tended to show that at the time the written agreement was entered into there was a parol agreement between the plaintiff and the defendants that the former would not be required to sort and stack the lumber, and that upon the faith of this agreement the plaintiff signed the written contract. In fact, the evidence did' not tend to contradict or vary the written contract which made no provision for sorting or stacking the lumber. It is settled by our decisions, however, that parol evidence is admissible to show that at the execu
The judgment is affirmed.