Seeler Elevator Co. v. Backus Water Motor Co.

Citations

• 51 Pa. Super. 29
• 1912 Pa. Super. LEXIS 172

Syllabus

<p>Evidence — Lost letter — Parol testimony — Case for jury.</p> <p>1. Where the plaintiff in an action of assumpsit notifies the defendant to produce a letter which is essential to the plaintiff’s case, and upon the nonproduction of the original the plaintiff, not having a copy, proves by the evidence of two witnesses the fact of the writing and mailing of the letter and the contents thereof, as the witnesses remembered it, the case must be submitted to the jury. The fact that the letter was written eight years before the trial and that there was nothing unusual about it to fix the witnesses’ attention, does not justify the court in withdrawing the testimony from the jury.</p> <p>2. When the establishment of a question of fact depends upon oral testimony, the credibility of the witnesses is for the jury alone, and it is their exclusive province to determine whether from such testimony the fact in dispute has been established.</p> <p>Pleading — Evidence—Allegata and probata — Trial on merits — Waiver.</p> <p>3. Where in an action for a breach of a contract to furnish a gas engine, the statement of claim proceeds upon the theory of an implied warranty, but a portion of it sets up a claim for the amount recovered substantially as disclosed by the evidence, the defendant after a trial on the merits and a verdict and judgment against him, cannot object to the form of the statement of claim.</p>