Tarentum Lumber Co. v. Marvin

Citations

• 61 Pa. Super. 294
• 1915 Pa. Super. LEXIS 320

Syllabus

<p>Pleading — Variance—Allegata and probata — Evidence.</p> <p>Although the allegata and probata may not entirely agree, if the defendant' is not misled, and the variance does not in any manner affect the trial on its merits, or set up a different cause of action, or impose any different burden on the defendant, the variance will not be considered- material.</p> <p>Where in an action of assumpsit the plaintiff’s statement sets forth an oral contract, and the proofs establish the oral contract, and further show a confirmatory letter addressed to the defendant and in his possession, the failure of the statement to set forth the letter is not fatal variance.</p> <p>Evidence — Writings—Boohs of original entry.</p> <p>In an action for goods sold and delivered, leaves taken from a loose-leaf book of original entry, consecutively numbered or paged, showing quantity, quality and delivery of goods, are admissible when independent evidence is given to the effect that the material called for in the leaves was delivered, accepted and, with certain exceptions, used by the defendant.</p> <p>Gontraci — Building contract — Extras—Evidence—Principal and agent.</p> <p>In an action to recover a balance due on a contract for furnishing mill work and lumber to a building operation, the cost of extras may be recovered where it appeared that orders for them were given by the defendant, or his carpenter foreman, and no question is raised by defendant at the trial as to the authority of the carpenter foreman to give the'orders.</p>