Fraser v. Stratford

Citations

• 49 Pa. Super. 72
• 1912 Pa. Super. LEXIS 285

Syllabus

<p>Contract — Sale—Evidence—Principal and agent — Case for jury.</p> <p>1. In an action to recover the price of a tombstone purchased by defendant through a salesman of the plaintiff, a verdict and judgment for defendant will be sustained where the evidence shows that the stone ordered was to be a duplicate of the one shown to the salesman, and that the stone furnished differed in some material respects from the one that was shown to the salesman.</p> <p>2. In such a case plaintiff was asked on an interrogatory, through a commission, to state what authority he had conferred on the salesman in taking orders for tombstones. He answered by saying that the salesman’s “only authority was to receive orders and forward the same to this office.” The reply to the interrogatory was objected to by the defendant and ruled out by the court. Held, that the court committed no reversible error inasmuch as the rejection of the answer in no way affected the plaintiff.</p> <p>3. The plaintiff could not have limited by his own testimony the authority which he had conferred upon his agent as salesman, or his representative to receive orders, if it had been different from what was properly to be inferred from his position as such salesman.</p> <p>Practice, C. P. — Refusal of new trial — Discretion of court — Assignment of error.</p> <p>4. Where there has been no misuse of discretion by the lower court in refusing a new trial, such refusal is not assignable as error.</p>