Bair & Gazzam, Lim. v. Hubartt
Supreme Court of Pennsylvania
APPEAL BV PLAINTIFFS FROM THE COTJBT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 135 October Term 1890, Sup. Ct.; court below, No. 810 March Term 1889, C. P. No. 1. On February 28, 1889, Bair & Gazzam, Limited, brought foreign attachment against William Hubartt.
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APPEAL BV PLAINTIFFS FROM THE COTJBT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 135 October Term 1890, Sup. Ct.; court below, No. 810 March Term 1889, C. P. No. 1. On February 28, 1889, Bair & Gazzam, Limited, brought foreign attachment against William Hubartt. On April 11th, the defendant having appeared, the plaintiffs filed a statement of claim averring that on September 19, 1888, they had made a proposal to the defendant, in writing, which was as follows: “Dear Sir: We agree to make drawings, patterns and dies, and build you one of the Thomas patent fire escapes at the prices and…
1Opinion of the Court
OpiNion,
Mr. Justice Mitchell:
The plaintiffs’ affidavit that the dies were omitted by direc*99tion of defendant’s agent was a reply to the defence on the failure to make them, but was not a reply at all to the amount of credit defendant would be entitled to, if the jury should find that he did not so direct. The omission of the dies was an admitted and material variance from the written contract, and it was necessary for the plaintiffs to prove a justification for it. If they failed to do this, then the jury would have to pass upon the amount of damage occasioned thereby to the defendant, and…
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