Smith v. Cunningham Piano Co.

Citations

• 239 Pa. 496
• 86 A. 1067
• 1913 Pa. LEXIS 597

Syllabus

<p>Appeals — Assignment of error — Ruling on evidence — Failure to cite testimony.</p> <p>1. An assignment of error to the overruling of an objection to testimony will not be considered where the assignment does not quote the evidence submitted.</p> <p>Evidence — Testimony—Answer partially responsive — Motion to strike out.</p> <p>2. It is not error to deny a motion to strike out the whole of a witness’ answer to a question where no objection was made to the question and part of the answer was responsive.</p> <p>Contracts — Building contract — Substantial performance — Defective work — Arbitration clause — Dereliction of architect — Question for jury.</p> <p>3. In an action to recover a balance claimed to be due on a contract fox the erection of a building it is not error for the court to affirm a point, which was in substance that if the plaintiff had with honest intent substantially performed the contract, failure in slight particulars would not prevent him from receiving fair compensation with due allowance to the plaintiff for any loss or damage suffered, where the testimony of plaintiff’s witnesses went to show that the building in question was substantially finished with reasonable promptitude, and the detailed statement filed by the defendant for expenses alleged to have been incurred by reason of incomplete or defective work shows that the alleged failure of plaintiff was in comparatively unimportant particulars.</p> <p>4. In such a case questions arising between contracting parties not included in the arbitration clauses, or questions raised relating to failure or dereliction in the performance of duties of the architects themselves, are for the jury, and the right to have these matters so passed upon cannot be denied upon the ground of failure to arbitrate.</p> <p>5. In such a case where it appeared that the defendant had not taken advantage of a provision of the contract to terminate the same under the certificate of the architect, and the dispute is as t