Barnett v. Becker

Citations

• 25 Pa. Super. 22
• 1904 Pa. Super. LEXIS 7

Syllabus

<p>Sale — Contract—Sample—Entire and severable contract — Evidence—Province of court and jury — Oral contract — Oral evidence.</p> <p>Where on a contract for the sale of eight cases of tobacco by separate sample for each case, it appears that the defendants accepted four cases and returned four cases as not in accordance with the samples, and the plaintiffs for over a month by their correspondence claim that the tobacco was in accordance with the samples, and make no claim that all should be returned or all should be accepted, and the testimony is oral and is contradictory as to the intention of the parties as to whether the sale was entire or severable, it is error for the court to take the case from the jury and give binding instructions for the plaintiff for the value of the whole of the tobacco in the eight cases.</p> <p>Where a case depends upon oral testimony such testimony must be submitted to the jury; and this is the case even where the testimony is uncontradicted.</p> <p>Where on a contract of sale of eight cases of tobacco the purchaser accepts four cases and returns the other four cases as not in accordance with the samples it is error for the court to permit a recovery for the whole eight cases. The plaintiff is only entitled to a verdict for the value of the four cases retained, and for damages for the breach of the contract as to the four cases returned.</p>