Noel v. Kessler

Citations

• 252 Pa. 244
• 97 A. 446
• 1916 Pa. LEXIS 601

Syllabus

<p>Actions — Parties defendant — Suit in wrong capacity — Pleading —Statement of claim — Trials—Technical errors — New trial — Refusal — Appeal—Practice, Supreme Court.</p> <p>1. In an action for a balance alleged to be due for work done under a written contract and also for an amount due under a parol agreement, the caption of papers in the case set forth the names of defendants, followed by the words “formerly trading and doing business as Cambria Lumber Company,” but the statement did not aver that the defendants had been partners; the affidavit of defense set up a counterclaim but did not deny the partnership liability ; plaintiff offered in evidence a contract executed by Cambria Lumber Company which did not show any individual liability on the part of defendants; defendants did not plead surprise and ask for a continuance, but defended the case on its merits. Held, that defendants knew that they were being sued as partners doing business as the eompany which had entered into the contract in question, and were not prejudiced by its introduction in evidence.</p> <p>Contracts — Evidence — Parol evidence rule ■ — Contemporaneous oral agreement.</p> <p>2. Parol evidence is admissible to show that at the execution of a written instrument a stipulation was entered into, a condition annexed, or a verbal promise made upon the faith of which the writing was executed, though it may vary or materially change the terms of the contract. In such cases it is not necessary to allege that the agreement was left out of the contract through fraud, accident or mistake.</p> <p>3. In such case it was not error to allow plaintiff to recover for hauling and stacking certain lumber in connection with which the work referred to in the written agreement was done, where it appeared that the written agreement was executed upon the faith of a parol agreement between plaintiff and defendants, that plaintifE would not be required to sort and stack the lumber and that several months after the