Volk v. Beatty

Citations

• 40 Pa. Super. 628
• 1909 Pa. Super. LEXIS 652

Syllabus

<p>Appeals — Assignments of error — Points—Answers to points.</p> <p>1. A party is entitled to a clear and distinct statement of the law in answer to every point properly drawn that is material and applicable to the case and warranted by the facts and the evidence, if not covered in the general charge.</p> <p>Contract — Building contract — Time limit — Parol agreement.</p> <p>2. In an action to recover a balance alleged to be due on a building contract where the defendant sets up a contemporaneous verbal contract that the house was to be completed by a certain time, and that it was not so completed, the defendant is bound to show either that the alleged agreement was omitted from the written agreement by fraud, accident or mistake, or he must show by definite and sufficient evidence that the alleged oral agreement was in fact a contemporaneous parol agreement, and that it was the inducement for the execution of the writing. If he fails to do this the appellate court will sustain a verdict and judgment against him.</p> <p>Practice, C. P. — ■New trial — Evidence—Paper-book.</p> <p>3. Where an assignment of error is to the discharge of a rule for a new trial, and the depositions submitted on the argument of the rules are not printed in the appellant’s paper-book, the appellate court will assume that the facts are as stated in the opinion of the lower court discharging the rule.</p>