Appeal from order of Court of Common Pleas of Erie County, Sept. T., 1963, No. 34, in case of Max S. Schneider v. William L. Patterson.
John W. Beatty, with him Knox, Pearson & McLaughlin, for appellant.
James P. Lay, III, with him Gifford, Jones & Lay, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J.
[ 209 Pa. Super. Page 266]
This is an appeal from the order of the Court of Common Pleas of Erie County, granting a new trial to the defendant-appellee, William L. Patterson, in an action of assumpsit, which resulted in a jury verdict in
[ 209 Pa. Super. Page 267]
favor of the plaintiff-appellant, Max S. Schneider, in the amount of $3002.95.
The action was brought on a promissory note made by the appellee in favor of the appellant in payment for the sale of a boat. The purchase price of the boat was $24000, $4000 of which was to be paid by the appellee's promissory note dated January 30, 1960, and payable on or before May 15, 1962, "if said yacht, its machinery and equipment is then in good operating condition or seaworthy for cruising as a pleasure craft on the Great Lakes, U.S.A. (hereinafter referred to as condition), but if said yacht, its machinery and equipment is not then in such condition the undersigned Max S. Schneider will cancel and return said promissory note to said William L. Patterson, or put said yacht, its machinery and equipment, in such condition on or before May 24, 1962, the determination of such condition in case of any dispute to be made by Capt. Don R. McRae and Associates, 6644 Ogalas Avenue, Chicago, Illinois."
The boat in question was a used one that had previously been sunk. The appellant had owned it during the 1961 boating season and testified that it was in perfect condition when it was drydocked for the winter season. The appellee first saw the boat in Chicago, during the winter of 1961-1962 and the contract in question was executed January 30, 1962.
The appellee prior to May 15, 1962, had made some repairs costing $1000 to the boat in Chicago, without notice to the appellant so that the matter could be brought to the attention of Capt. McRae, according to the agreement. Subsequent to May 15, 1962, the appellee sailed the boat down the Great Lakes from Chicago to Erie, and on May 19, 1962, admitted in writing, that the boat operated "extremely well" on the trip.
On May 20, 1962, the port engine of the vessel exploded and within one hour's ...