Achenbach v. Stoddard

Citations

• 253 Pa. 338
• 98 A. 604
• 1916 Pa. LEXIS 835

Syllabus

<p>Contracts — Written agreements — Yariation by parol.</p> <p>1. It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed, or a new one substituted; and this may be shown by parol by showing either an express agreement or actions necessarily involving the alterations. While the burden is upon the party asserting the change, all that is required is that the evidence in support of the same should be convincing to the jury.</p> <p>2. A written contract provided that certain excavations should be performed by the contractor at 25 cents per cubic yard. The contractor and the owner of the land agreed upon the lines within which the excavation should be done; subsequently the location was changed and the contractor sought to recover 45 cents per cubic yard for performing the work. There was evidence that when the change of location was contemplated, the,contractor refused to work in the new location unless he should be paid not less than 45 cents per cubic yard, and that the owner thereupon agreed to pay said price; this evidence was denied by the owner. Held, the case was for the jury and a verdict and judgment for the plaintifí was sustained.</p> <p>Practice, Supreme Court — Appeals—Points raised for first time on appeal — Waiver.</p> <p>3. A party will not be heard in the appellate courts to question the correctness of the submission of a case after the lower court has submitted it from the standpoint in which parties to the issue manifestly tried it. The Supreme Court reviews only questions considered and determined in the court below and will not convict the trial court of error in not having ruled a case on questions which both parties concede were not in it.</p> <p>Actions — Parties—Tenants in common — Joint action.</p> <p>4. Where tenants in common were jointly sued, the objection that the evidence showed that a contract sued upon for additional compensation was made with only on