Tranter Davison Manufacturing Co. v. Pittsburg Trolley Pole Co.

Citations

• 23 Pa. Super. 46
• 1903 Pa. Super. LEXIS 9

Syllabus

<p>Evidence — Parol evidence — Affidavit of defense — Contract.</p> <p>In an action to recover the price of a boiler sold and delivered, the plaintiff set up a written agreement by which the boiler was to be delivered f. o. b. cars at place of plainliff’s business within thirty days of receipt of acceptance of order. The contract also provided that “ there are no understandings or agreements outside of this written contract and the acceptance of the machinery when delivered is understood to constitute a waiver of all claims or damages by reason of any delay.” The defendant’s affidavit of defense admitted the delivery of the boiler and acceptance thereof, but averred that there was a contemporaneous oral agreement that it was to be delivered at the defendant’s place of business within thirty days after the acceptance of the offer, that time should be of the essence of the contract, that the boiler was not delivered within the time specified and defendant sustained damages exceeding the price of the boiler. There was no averment that the oral agreement had been omitted from the written one by fraud, accident or mistake. Held, that the affidavit of defense was insufficient to prevent judgment.</p>