Tarentum Lumber Co. v. Marvin

Opinion by Iyephaet, J., This is an action of assumpsit to recover the balance due on contracts for furnishing mill work and rough lumber to appellant. From a judgment in plaintiff’s favor this appeal is taken. The errors assigned raise three questions. Was there a material variance between the pleadings and proof? Plaintiff offered evidence to show that a list, attached to certain plans and specifications, was submitted to it asking for bids on the mill work provided for in said list; and another list was submitted for the purpose of securing bids on rough lumber;, that two estimates or prices were given, which were afterwards consolidated into one price, and confirmed by a letter. This was orally accepted by the appellant. Defendant urges that the contract in suit was .contained in this confirmatory letter. It was not averred in the plaintiff’s statement of claim; and the defendant argues that the plaintiff’s testimony, in relation to the letter, sets up a material variance. We cannot agree with this conten [297] tion. Plaintiff proved what its statement averred. If the letter formed a part of this contract, its omission from the pleadings, and the plaintiff’s evidence in relation thereto, under the facts of this case, would not constitute such a variance that worked a hardship to appellant. Appellant was not misled; he had the letter and came prepared to meet a contract made up as here indicated. Though the allegata and probata may not entirely agree, if the defendant is not misled and the variance could in no manner affect the trial on its merits, or set up a different cause of action, or impose any different burden on the defendant, the variance would not be considered material: Clymer-Jones Lith. Co. v. U. S., Etc., Co., 48 Pa. Superior Ct. 636; Walter v. Transue, 22 Pa. Superior Ct. 617. The plans and specifications were not a necessary part of plaintiff’s case. There was no contention that the list upon which a bid was given and accepted was not the list that accompanied the plans and specifications. As to the offer of the slips to prove quantity, quality and delivery, in performance of a contract for future delivery, it was shown that these slips were leaves taken from the loose-leaf book of original entry, consecutively numbered or paged. How they were made, and how the notations were placed upon them, were fully described by witnesses. Without deciding their admissibility standing alone, they certainly became admissible when independent evidence was given to the effect that the material called for in these slips was delivered, accepted, and, with certain exceptions, used by the defendant. There was sufficient evidence to submit to the jury upon which to base a contract for extras. It appeared that these orders were given by defendant or his carpenter foreman, and the extras called for were delivered to the defendant. The authority of the carpenter foreman to buy should have been raised during the trial, and unless his authority be shown an objection should have been made to the admission of this evidence. [298] The assignments of error are overruled, and the judgment is affirmed.