Kenneth W. Rice, Meadville, for appellants.
Robert L. Walker, Linesville, Humes & Kiebort, Meadville, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 480]
This assumpsit action arose out of the issuance of a writ of foreign attachment. Appellants, husband and wife, sought to recover of Kersey Woodard and Laura S., his wife, appellees, the sum of $875 representing the purchase price of certain electrical reducing equipment. A jury rendered a verdict for appellees. This appeal is from the dismissal by the court en banc of appellants' motion for a new trial in which they complained of inadequacy of the trial judge's charge to the jury.
In view of the disposition we hereinafter make, it becomes unnecessary to recite the facts in detail. Suffice it to say that the complaint averred, inter alia, that Anita Williams gave defendants a check for $875 for the purchase of certain electrical reducing equipment, on condition that her husband approve the purchase;
[ 171 Pa. Super. Page 481]
that fraud was present and that certain misrepresentations were made; that express warranties had been made by appellees which were breached. Appellees' answer denied all material averments of the complaint.
Appellants contend that the charge of the trial judge was so inadequate as to constitute basic and fundamental error requiring the grant of a new trial. There is merit to this contention. Although a general exception only was taken to the charge, it is settled that where basic and fundamental error has been committed, a general exception will suffice. Cf. Capristo v. Gross, 133 Pa. Super. 61, 1 A.2d 575; Patterson v. Pittsburgh Railways Co., 322 Pa. 125, 128, 185 A. 283; DiPietro v. Great Atlantic and Pacific Tea Co., 315 Pa. 209, 173 A. 165.
Upon a reading of the entire charge there appear numerous instances wherein this charge was not only erroneous but woefully inadequate. The pleadings and testimony disclosed that the subject matter was contractual in nature but the court below, on the pertinent law of contracts, charged only that 'A contract is an agreement upon a sufficient consideration to do or not to do a particular thing'. On the ever elusive subject of fraud and misrepresentation raised by the record, the court below was equally terse. The complete charge on these subjects was as follows: 'Fraud and misrepresentation are never presumed -- they have to be proven'. This represents a fair summary of the charge on the issues of law. No instructions were given concerning executory and executed contracts, conditions precedent and subsequent or express warranties despite the fact that the pleadings and testimony of the witnesses called loudly for such instructions.
The charge of the court below on the question of burden of proof was insufficient and afforded no 'guide or compass' to the ...