Roebling's Sons Co. v. American Amusement & Construction Co. , 231 Pa. 261 ( 1911 )

Opinion by

Mr. Justice Potter,

It appears from the evidence in this case that on April 17, 1903, Roebling’s Sons Company sent to the American Amusement & Construction Company, a letter containing an offer to furnish certain machinery needed, which was specified in detail, for the total price of $3,913. The letter referred to blue prints (B. P.) which had previously been submitted to representatives of the defendant company. On April 21, 1903, Thomas J. Ryan, president of the amusement company, wrote a letter to Roebling’s Sons Company, accepting the proposition to furnish the machinery, and inclosing check for the amount of the initial payment required. The machinery was completed and delivered by May 29, 1903, and subsequently a bill was rendered, which showed a balance of $3,182.04 due Roebling’s Sons Company. Payment was refused by the defendant company, upon the ground that the machinery was not properly made, and could not be operated without alterations which caused expense and delay. Upon the trial counsel for plaintiff offered in evidence the letter above referred to, containing the proposition to furnish the machinery, which letter had been produced by defendant on call. In response to an inquiry from the other side, plaintiff’s counsel stated that he was suing on the letter; that is, upon the contract set forth in the letter. Objection was then made to the offer because it was not set forth in the statement of claim. On motion, counsel for plaintiff were then permitted to amend the statement. A motion by defendant then followed, for a continuance on the ground of surprise, which was overruled. To this action of the trial court, counsel for defendant excepted, and have made it the basis of the first and second assignments of error. The propriety of continuing the case after the allowance of an amendment, when the defendant has pleaded surprise, is a matter within the discretion of the trial judge. This principle was laid down in Folker v. Satterlee, 2 Rawle, 213, and was reaffirmed with some elaboration by Mr. Justice Sargeant in Tassey v. Church, 4 W. & S. 141, 143, where he said, “This question arises under the provisions of the sixth section of the Act of March 21, 1806 (4 Sm. Laws, 326), by which, if by the alteration or amendment the adverse party is taken by surprise, the trial is to be postponed to the next court. The defendant contends that whenever an amendment of the declaration is made immediately before or during the trial, he has a right to a continuance as a matter of course. The act of assembly does not seem to us capable of this construction. It puts it not on the allegation of surprise, but on the existence .of the fact, which necessarily throws upon the court the duty of ascertaining and determining whether the party is really surprised, or there is merely an affectation of being so without real foundation. For many cases may be supposed in which the alteration would be so trivial, or it could be so obvious, that no surprise could exist, that it would be unjust to allow a continuance. Of this, however, the court below is the sole judge: being, matter of sound discretion, and turning frequently on matters of fact not appearing in the record, the question whether or not a party was surprised by allowing an amendment, is not of a nature to be examinable on a writ of error, but the judgment of the court must, as in numerous other instances, be final and conclusive.” The same principle was again stated in Farmers’ & Mechanics’ Ins. Co. v. Simmons, 30 Pa. 299, 302, where Mr. Justice Strong said: “If the amendment was properly allowed then the refusal to permit a continuance of the cause was a thing discretionary with the court, and the exercise of that discretion cannot be reviewed by us.” And again in Walthour v. Spangler, 31 Pa. 523, it was held, as set forth in-the syllabus, “The allowance or refusal of a continuance, in case of an amendment, is a matter of discretion in the court below, which is not reviewable in this court.”

In the present case we see no reason to fairly question the discretion which was exercised by the trial judge, in refusing to continue the case; and as to the admission of the letter in evidence, if the amendment to the statement was proper, the letter which was the subject of the amendment, was necessarily admissible.

In the third assignment of error, complaint is made of the admission in evidence, against objection, of an invoice or itemized statement of the amount claimed by plaintiff. It appears from the record that a letter written by plaintiff to defendant, stating the amount of the invoice, was offered in evidence, and was admitted without objection. Counsel for plaintiff then offered the invoice referred to in the letter, and it was admitted against objection. We see nothing wrong in this, for the invoice was merely an itemized statement of the amount claimed. If the letter was admissible, the invoice was equally so, for it was merely an amplification of a part of the letter. We do not see that its admission could have done defendant any harm. The fact that the machinery had been furnished was not denied, nor was it claimed that the prices charged were not in accordance with the contract. The defense was in the nature of a set-off, and could not be affected by the use of this invoice as evidence.

In the fourth assignment of error, complaint is made of the exclusion of the offer of defendant’s counsel, to show that no blue prints, showing the machinery in question, were received or seen by defendant prior to the date of the acceptance of plaintiff’s proposition. The letter containing that proposition stated, “We propose to furnish winding machinery complete, as shown by our B. P. (blue prints).” The trial judge excluded the offer, for the declared reason that, under the wording of the proposition, if defendant had not received the blue prints, it should have notified the plaintiff of that fact, and have waited until it did receive them before accepting the offer. He held that if defendant saw fit to accept the proposition without waiting to receive the blue prints, it was bound by its acceptance, and it was therefore immaterial whether it had actually received the blue prints at the time or not. We see no reason to differ with the view expressed by the trial-judge in this respect.

The fifth, sixth, seventh, eighth, ninth and eleventh assignments of error all relate to the exclusion of evidence bearing upon the measure of damages to be allowed to defendant, in case it succeeded in satisfying the jury that the plaintiff had not fulfilled the terms of the contract. But it is apparent from the verdict that the jury found that there was no breach of the contract, for it awarded to plaintiff its entire claim. Under this finding, no damages could have accrued to defendant, and the action of the court with respect to evidence as to the measure of damages, became immaterial.

In the tenth .assignment of error it is alleged that the trial judge erred in excluding an offer made by defendant’s counsel to show that the track furnished by plaintiff was inadequate to sustain the burden put upon it, and that by reason of that fact the defendant was obliged to lay additional rails and readjust the track. It does not appear, however, that there was any offer to show any departure in the weight or size of the parts in question, from the specifications set forth in the contract. There was evidence tending to show that the material furnished conformed in these particulars to the contract, and to the order given by defendant company. There was no express warranty as to the working of the machinery, and as the order specified articles of a given weight, size and material, to be manufactured according to specified plans, there would be no implied warranty. The principle of an implied warranty is not to be applied where a special thing is ordered, although this be intended for a special purpose: Port Carbon Iron Co. v. Groves, 68 Pa. 149; American Home Savings Bank Co. v. Trust Co., 210 Pa. 320.

In the twelfth assignment of error, complaint-is made of the overruling of the objection of defendant’s counsel to a hypothetical question put to a witness called by plaintiff in rebuttal. The testimony shows that the objection was made on the specific ground that “the contract provides for grip cars and trailers.” Counsel for appellant now urge that the question assumed facts not in evidence, and that it was therefore error to overrule the objection. But that is not the ground upon which the objection was put when it was made. In Mills v. Buchanan, 14 Pa. 59, where the prior decisions were reviewed, it was held, as set forth in the syllabus, that “a party objecting to evidence, is to be confined to the ground of objection taken in the court below.” And in the later case of Danley v. Danley, 179 Pa. 170, it was declared to be a settled principle that the party complaining on appeal of admission of evidence in the court below, will be confined to the specific objection there made to it. This rule was again approved in the recent case of Benner v. Fire Association, 229 Pa. 75. The trial judge submitted to the jury the question whether the alleged unsatisfactory operation of the plant was due to the improper manner in which the machinery was set up and run, or whether it was due “to a radical or essential insufficiency” in the machinery itself. The verdict of the jury settled this contention in favor of the plaintiff.

The assignments of error are all overruled, and the judgment is affirmed.