York Manufacturing Co. v. Chelten Ice Mfg. Co.

Citations

• 278 Pa. 351
• 123 A. 327
• 1924 Pa. LEXIS 404

Syllabus

<p>Contract — Performance—•Counterclaim — Payments — Renewal notes — Case for jury — Evidence—Declarations of agent — Res gestee —Measure of damages.</p> <p>1. In an action to recover a balance alleged to be due on an ice plant sold and delivered, where defendant offers evidence tending to show that the plant was defective, that plaintiff had not been able to remedy its defects, and that it never conformed to the requirements of the contract, and sets up a counterclaim for breach of contract, the case, on conflicting evidence, is for the jury.</p> <p>2. In such case it is competent for defendant to show what possession plaintiff had of the plant, what work it did thereon, that the machine was generally out of repair, and that it failed to produce the guaranteed amount of ice.</p> <p>3. Declarations and statements by plaintiff’s agent in charge of the work of repairs made in connection with his work are admissible, in such case, as part of the res geste.</p> <p>4. If defendant has retained the plant on its premises, the measure of damages is the difference between the value of the machinery contracted for and as actually furnished.</p> <p>4. The rule that one who gives a renewal note with knowledge of the failure of consideration for the original note, waives such defense, does not apply where the original note was given in part payment for a machine which was defective, when the renewal note was given, and was being repaired by the payee of the note, without any certainty on the part of the maker of the note that the machine would not be brought up to the contract requirements.</p> <p>Appeals — Assignments of error — More than one hill of exceptions —Court Rule 22.</p> <p>6. Exceptions to admission of evidence of two witnesses cannot be joined in one assignment of error. It .violates Court Rule 22.</p>