78 Pa. Super. 479 | Pa. Super. Ct. | 1922
Opinion by
The plaintiff’s action was brought to recover damages arising from the alleged failure of the defendant company to deliver a quantity of cloth pursuant to the following memorandum, signed by the defendant’s authorized agent:
“Hovland-Sardeson-McColm Co.
“Designers and Makers of Coats and Suits
“Chicago, Oct. 1
“Sold to Sheinman Bros.
“240 So. 5th St.
“767-50 pieces Poplin at 157%' x 5% delivery Jan. and Feb. 2/10-60 Providing same is satisfactory to Whitman & Co. About 25 to 50 pieces velour, American about equal asst. 220 x 2%c. yd.
“(Signed) Borge.”
The pieces of poplin were delivered to the plaintiffs. The controversy arises over the nondelivery of the velour. The plaintiffs alleged that the agreement covered an unqualified sale of the merchandise as described in the memorandum. The defense presented was that the defendant was not a dealer in cloth, but a manufacturer of women’s coats and suits; that at times a surplus of cloth existed after the demands of the factory were met, in which instances such surplus was disposed of. It was asserted that the memorandum signed by the defendant’s agent related to the existence of an anticipated surplus; that it was clearly understood between the plaintiffs and the defendant that it was only in the event that the defendant obtained from the American Woolen Company a larger quantity of velour than it might need that it would have any to sell; that it was willing to sell to the
The second cause of complaint is that the court refused to withdraw a juror. The 8th and 9th assignments of error introduce this subject. The request for the withdrawal of a juror was made after reproof by the court of one of the counsel for the plaintiffs because during the progress of the examination the counsel used a “slurring criticism” of the witness by calling him a “willing witness.” This is all the record shows of the action of the court and the occasion therefor, and we find nothing therein to convince us of error in proceeding with the trial. To reprove is to express disapprobation of, and it is clearly within the privilege of the court to protect a witness from unwarranted accusations by counsel. A witness is usually in court in response to legal process, and it is the duty of the court to prevent improper assaults on his character. It was said at the argument that the record does not. disclose all that took place when the incident occurred, but we can only consider that which is brought up as the record. If anything important properly belonged therein, but was omitted, the perfecting of the record was a subject for correction in the regular manner. Application for the withdrawal of a juror is addressed to the sound judicial discretion of the trial court, and the refusal of a motion to that
The other assignments do not require discussion. We do not find reversible error in the record.
The judgment is affirmed.