Appeal, No. 313, Oct. T., 1954, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1952, No. 5276, in case of Royal Pioneer Paper Box Mfg. Co., Inc. v. Louis DeJonge & Company, Defendant, and Royal Pioneer Paper Box Mfg. Co., Inc., Garnishee. Judgment affirmed.
Eli N. Donsky, for appellant.
Abraham L. Shapiro, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 179 Pa. Super. Page 158]
Defendant-appellant in this foreign attachment suit appeals from the lower court's entry of judgment on the verdict after refusing motions for new trial and judgment n.o.v.
Early in the year 1950 the New York department store of Lord and Taylor gave the plaintiff paper box manufacturer an order for a large number of assorted boxes for delivery in time for the 1950 Christmas season. The boxes were to be covered by the plaintiff with silver and gold foil type paper, which was manufactured by the defendant paper manufacturer. Lord and Taylor made the arrangements with the defendant regarding the color, type and price of the paper, and the plaintiff was directed to order all of its requirements for the Lord and Taylor job from the defendant.
[ 179 Pa. Super. Page 159]
In 1950 these arrangements were executed to the satisfaction of all the parties concerned, with the result that in early 1951 the process was again instituted and the boxes were produced for the Christmas season of 1951. In 1951, however, there was disharmony in the arrangements resulting from certain manufacturing difficulties which plaintiff encountered in using the defendant's paper to cover the boxes. As a result plaintiff instituted the instant proceeding by attaching certain book accounts which it then owed to defendant in the amount of $3,003.95, claiming damages as a result of the faulty paper in the amount of $4,238.95. The lower court entered judgment on the verdict in plaintiff's favor for the excess, $1,235.00, since plaintiff admitted it owed the $3,003.95 to defendant.
Initially we should dispose of a procedural issue raised by appellant. The complaint alleges a breach of an express oral warranty that the paper would be fit for the intended use of covering the Lord and Taylor boxes. Defendant denied any express oral warranty but admitted that it knew of the intended use for Lord and Taylor. At the trial evidence was produced which indicated an implied warranty that the paper would be fit for the particular purpose for which it was ordered. No complaint was made by defendant at the time the evidence was introduced, nor did it base its motion for non-suit and its request for binding instructions upon this variance. Where there is no objection to the testimony on the basis of the variance, it is our duty to treat the pleadings as amended to conform to the proof. Culbertson v. Ansell, 303 Pa. 45, 52, 153 A. 900. The only objection which defendant made concerning this implied warranty was to the court's charge which submitted the case to the jury, inter alia, on the theory of implied warranty. Then
[ 179 Pa. Super. Page 160]
it was too late. Defendant should have consistently objected to the introduction of evidence on the implied warranty and should at least have moved to strike it prior to the court's charge. The submission of the case to the jury on the theory of implied warranty was only in keeping with the evidence introduced at the trial without objection. Moreover, defendant has not shown on this appeal how or in what manner ...