Loeb v. Davidson

Citations

• 261 Pa. 418
• 104 A. 681
• 1918 Pa. LEXIS 756

Syllabus

<p>Contracts — Building contracts — Material variations — Substantial performance — Case for jury — Trials—Evidence—Expert witnesses —Hypothetical questions.</p> <p>1. In an action on an agreement to recover the down money plaintiff had paid on account of the purchase-price of certain buildings then in the course of erection which upon completion plaintiff refused to accept, alleging that there were material deviations from the plans and specifications, the contract provided that “minor and unintentional deviations from the plans and specifications shall not abrogate this agreement but shall be the subject of allowance to the vendee if the value of the building is thereby depreciated” ; and the specifications required that the building laws of the City of Philadelphia should be carefully observed. It appeared that the “headers” in the brick walls were made every tenth course instead of every seventh course as required by the Act of May 5, 1899, P. L. 193, regulating the erection of buildings within the City of' Philadelphiá; but the city building inspector testified that he observed the building in the course of construction and that the making of the “headers” every tenth course was required by the thickness of the bricks which were being used on the inside of the wall, and that the method employed* by defendants was in general practice in the City of Philadelphia and was approved by him. The trial judge allowed the jury to determine whether or not there was a substantial departure from the- specifications, in which case plaintiff was justified in refusing to'complete the purchase; the jury found a verdict for defendants upon which judgment was entered. Held, no error.</p> <p>2. While the usual practice is to receive the testimony of án Expert in the form of answers to hypothetical questions, which he for the purpose of his testimony assumes to be' true, an expert who has had occasion personally to examine the subject-matter of the inquiry, and who has personal kno