Swing v. Bates Machine Co.

Citations

• 32 Pa. Super. 403
• 1907 Pa. Super. LEXIS 22

Syllabus

<p>Contract — Performance—Substantial performance — Defective work.</p> <p>In an action on a contract where a substantial performance has been shown, the plaintiff may recover subject to deduction for defective work. In such a case it is error for the court to refuse to permit the defendant to show the amount of such deduction, merely because the defendant set up as a defense that he had not made the contract with the plaintiff. Two defenses were open: one that the contract was not executed as claimed by the plaintiff; the other that the plaintiff had failed to perform according to the contract. The plaintiff could only recover by showing that the defendant contracted. If the contract was shown to exist the defendant was bound to pay, but only according to the terms of the agreement, and if that was not carried out by Ihe plaintiff the defendant was entitled to show such failure of performance.</p> <p>Principal and agent — Evidence—Foreign corporation — Evidence.</p> <p>In an action against a foreign corporation which was a manufacturer of engines, to recover a balance alleged to be due on a contract for piping, the defendant averred that the contract was made by a selling agent, and that it was not within the scope of such agent’s authority. There was evidence that the agent in question was the defendant’s registered agent in Pennsylvania, and there was some evidence that he was held out to be the commercial agent. His name appeared on letter-heads as the manager of the defendant’s eastern sales department. The letter-head showed that the defendant was a manufacturer of high grade heavy duty Corliss engines and boilers. The agent made the affidavit of defense in the suit. Held, that the question- of the extent of the agency was for the jury.</p>