192 A. 671 | Pa. | 1937
Argued May 26, 1937. This is an action of assumpsit to recover the purchase price of "manetti," a hardy root used for grafting roses. The jury rendered a verdict for plaintiff. The court dismissed defendant's motions for a new trial and judgment n. o. v. and entered judgment on the verdict. From this judgment defendant appeals.
The plaintiffs were engaged in the cultivation of manetti in England. The defendant is a distributor with his principal place of business in Philadelphia. The manetti was shipped to him in pursuance of his orders, the contract calling for delivery at shipside, Thames River, England. Defendant in his pleadings admitted receipt of the manetti and that the prices charged therefor were fair and reasonable but alleged that the plants were infected with a disease and were valueless.
Defendant at the outset complains of the action of the trial judge in refusing to grant a continuance and of the action of the judge sitting with the special master in charge of the consolidated trial list in refusing to strike the case from the trial list. It is contended that the case was placed on the trial list before it was at issue. In this appeal there is no record of the proceedings before the trial commissioner. Under such circumstances the statements of fact made by the court below must be accepted: Sauber v. Nouskajian,
Complaint is also made of certain remarks of the trial judge which are alleged to be prejudicial. No exception *494
was taken to most of these remarks at the trial. In view of this fact they are not assignable as error: Penna. R. R.Co. v. Reading,
Defendant also assigns as error certain portions of the court's charge and contends that the charge as a whole was prejudicial to his cause. Defendant took only a general exception to the charge. "It has been repeatedly held that when errors are not basic and fundamental they must be made the subject of specific exceptions:" Mulheirn v. Brown,
Judgment affirmed.
