Otto Gas Engine Works v. Pepper

Citations

• 228 Pa. 205
• 77 A. 443
• 1910 Pa. LEXIS 455

Syllabus

<p>Contract — Sales — Parol contemporaneous agreement ■ — Evidence — Charge.</p> <p>1. In an action to recover the price of an electric light plant it appeared that there was a written contract which specifically stated what the defendant was to get for the price which he was to pay. The contract contained this clause: “And it is further agreed that this instrument evidences the whole contract under which the said engine is received by the undersigned.” The contract also provided that the plaintiff was to lay a necessary concrete foundation for the plant. It was admitted that such a foundation should extend sixty inches below the floor level. It was shown that it extended only twenty-two inches. When the plant was put in operation it was found that the noise, vibration and shock were so great as to render the building uninhabitable. Nothing was said in the contract about noise and vibration, but defendant alleged that there was a contemporaneous parol agreement that there should be no noise or vibration. The court charged that if the noise and vibration were undue and more than a reasonable man should have anticipated a defense was made out. It also permitted the jury to take into consideration the alleged parol representations. Held, that such instructions were erroneous.</p> <p>2. In such a case the appellate court has no means of determining whether a verdict for the defendant was based upon the failure of the plaintiff to build a proper foundation according to the contract, or upon the erroneous portions of the charge.</p>