author: MELINSON, Judge: TAMILIA, Judge,

text:
    567 A.2d 1080
    COMMONWEALTH of Pennsylvania, Appellant, v. Harold W. SMITH, Jr.
    Superior Court of Pennsylvania.
    Submitted April 17, 1989.
    Filed Dec. 20, 1989.

      Anthony J. Rosini, Asst. Dist. Atty., Shamokin, for Com.
    Allen K. Neyhard, Watsontown, for appellee.
    Before TAMILIA, POPOVICH and MELINSON, JJ.
   MELINSON, Judge:

This is a Commonwealth appeal from an Order dated November 14, 1988 in the Court of Common Pleas of Northumberland County. The trial court Order granted Harold W. Smith, Jr., the appellee, a new trial. We affirm.

Smith was charged with indecent exposure and corruption of minors for alleged incidents involving his seven-year-old stepdaughter. At Smith’s trial, the alleged victim testified. Following the child’s testimony, the Commonwealth presented the testimony of a family therapist who counseled the child following the alleged incidents. The counsel- or, Ms. Wiley, was asked on direct examination whether she had “an opinion as to [the child’s] ability to in character tell the truth.” The counselor then offered her opinion as to the child’s character for telling the truth. No objection was raised by Smith’s attorney. Subsequently, Smith was convicted of the crimes charged. Trial counsel withdrew from Smith’s representation after filing post-verdict motions. Supplemental post-verdict motions, requesting a new trial, were filed by Smith alleging the ineffectiveness of trial counsel for failing to object to the expert’s opinion as to the truth-telling capabilities of the seven-year-old child. The trial court granted Smith’s motion for a new trial on this ground. This is the Commonwealth’s appeal of the trial court’s Order.

On appeal, the Commonwealth argues that “the lower court erred in granting [Smith’s] motion for a new trial on the basis of ineffective assistance of counsel as the Commonwealth’s testimony did not infringe on the fact[-]finder’s obligation to determine the credibility of the witnesses and the introduction of testimony regarding the character for truthfulness of the victim, if in error, was harmless beyond a reasonable doubt.” We disagree.

There are three elements to a valid claim of ineffective assistance of counsel. First, we inquire into whether the underlying claim is of arguable merit, that is, whether the disputed action or omission is of questionable legal soundness. If the underlying claim is of arguable merit, we then ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interests. If he did, our inquiry ends. If not, the defendant will be granted relief if he can demonstrate that counsel’s improper course of conduct was prejudicial to his interests. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988).

Under Pennsylvania law, only evidence of a general reputation for truthfulness in the community is admissible as character testimony. Commonwealth v. Stiefel, 286 Pa.Super. 259, 428 A.2d 981 (1981) (Vander Voort, J. dissenting); see also Commonwealth v. Payne, 205 Pa. 101, 54 A. 489 (1903); Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976); In Interest of Lawrence J., 310 Pa.Super. 351, 456 A.2d 647 (1983); Henry, Pennsylvania Evidence, § 804 at 206 (4th ed. 1953). Thus, an individual’s opinion as to a witness’s “character for truthfulness,” no matter how well the individual knows the witness, is never admissible in this Commonwealth. Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647, 88 S.Ct. 2277, 20 L.Ed.2d 1344 (1968); Stiefel, 286 Pa.Super. at 269, 428 A.2d 981; Packel and Poulin, Pennsylvania Evidence § 608.1 at 418 (1987).

If a witness is impeached by proof of bad reputation for truth and veracity, evidence may then be admitted to prove good reputation for truth and veracity. Wertz v. May, 21 Pa. 274 (1853); McCormick, Evidence § 49 (3d ed. 1984); Packel and Poulin, Pennsylvania Evidence § 608.1 at 419. Bolstering evidence, however, is not admissible unless the character of the witness has been attacked, and even then, only at the trial court’s discretion. Wertz, 21 Pa. 274; Commonwealth v. Ford, 199 Pa.Super. 102, 184 A.2d 401 (1962); Packel and Poulin, supra, at 419.

At bar, the Commonwealth witness gave her personal opinion as to the child/witness’s character for honesty. Pennsylvania law clearly prohibits this testimony. The length of time the witness counseled or knew the child is clearly of no consequence to this conclusion. Furthermore, it is also decidedly irrelevant that the opinion testimony was offered, according to the Commonwealth, to rehabilitate the child/witness. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), states that “[although opinion evidence is not to be permitted on the issue of a witness’ credibility, there remain, of course, all of the traditional methods for developing or attacking a witness’ credibility.” Seese, 512 Pa. at 444, 517 A.2d 920. Because rebuttal or rehabilitative opinion testimony as to a witness’s character for telling the truth is not a traditional method for developing a witness’s credibility, Seese is not supportive of the Commonwealth’s argument at bar. We shall not allow, through circumvention of an established principle of Pennsylvania law, the introduction of testimony which is clearly inadmissible. Finally, evidence impairing the child’s reputation for veracity was not offered by Smith; moreover, the Commonwealth witness gave her personal opinion, not general reputational testimony, as to the truth-telling ability of the child. Accordingly, there is merit to Smith’s contention that counsel was ineffective for failing to object to the admission of this testimony. We further find that counsel had no reasonable basis for allowing its introduction. See Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988).

We also find that the admission of the testimony prejudiced Smith and warranted the grant of a new trial ordered by the trial court. The Pennsylvania Supreme Court has stated:

The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness____ The phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility of jurors to assess. For this reason, the question of a witness’ credibility has routinely been regarded as a decision reserved exclusively for the jury.

Commonwealth v. Seese, 512 Pa. 439, 443, 517 A.2d 920, 922 (1986) (citations omitted) (emphasis added); see Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989).

By testifying as to the child’s character for telling the truth, the Commonwealth witness usurped the credibility-determining function of the jury. This infringment upon the jury’s sacred domain prejudiced Smith because the credibility of the alleged victim was the linchpin of the Commonwealth’s case. See Commonwealth v. Thek, 376 Pa.Super. at 399, 546 A.2d at 88.

We find it unwise to create an exception to the credibility-determining function of the jury in a case in which an alleged child/victim testifies. We do not dispute that an alleged child/victim of sexual abuse should have the opportunity to take the witness stand and tell his or her story. The competency considerations for child witnesses, repeatedly articulated in Pennsylvania, are designed to allow a child witness to testify merely if the child has the capacity to have observed the event giving rise to the litigation with a substantial degree of accuracy, can remember the event giving rise to the litigation, has the ability to understand questions and communicate answers, and has a consciousness of the duty to speak the truth. Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988). Furthermore, child witnesses, like all witnesses, are presumed competent to testify. Anderson, 381 Pa.Super. at 7, 552 A.2d 1064. From this testimony, the jury, doubtlessly taking into consideration the youth of the witness, can make a determination as to the veracity of the testimony and the credibility of the witness. We find improper, on the other hand, a situation in which an expert witness, or any witness for that matter, takes the witness stand and under the guise of “rehabilitation” proceeds to testify as to the credibility of the child/witness. To allow such testimony is to permit the unlawful usurpation of the credibility-finding function of the jury. This strikes at the heart of our system of justice.

We would have reached our conclusion at bar if any Commonwealth witness presumed to give his or her personal opinion as to the veracity of another witness; we note, however, that our conclusion is augmented because Ms. Wiley was called as an expert. An expert witness, who has been introduced to the jury as possessing a specialized skill or knowledge in the field in which he is about to testify, certainly has more influence over a jury than a lay witness. See Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976); see also Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). Here, Ms. Wiley was introduced by the Commonwealth as “an expert in family therapy in dealing with abused, sexually abused children.” She testified that she has a Master’s degree in counseling with a specialty in family therapy, and she currently has forty clients and “between one-third and one-half of those clients are sexually abused.” Certainly, the members of the jury who have had no contact or association with sexually abused children will be more prone to defer to the knowledge and experience of an expert such as Ms. Wiley than to a witness without experience in dealing with such children. See O’Searo, 466 Pa. at 229, 352 A.2d 30; Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989). Accordingly, we find that Ms. Wiley’s opinion testimony as to the child’s ability to “in character” tell the truth was prejudicial to Smith, and that counsel was ineffective for failing to object to its introduction.

Order affirmed.

TAMILIA, Judge,

dissenting:

I respectfully dissent from the majority’s affirmance of the Order of the trial court awarding appellee a new trial. The Commonwealth appeals an Order dated November 14, 1988 which granted appellee-defendant Harold W. Smith, Jr., a new trial. Appellant was convicted by a jury on November 18, 1987 of indecent exposure, 18 Pa.C.S. § 3127, and corruption of minors, 18 Pa.C.S. § 6301, for incidents which occurred in October and November of 1984 between him and his then seven year old step-daughter. At trial, the Commonwealth presented testimony of a family therapist who counseled the victim during the nine month period after the alleged incidents. The counselor, Ms. Wiley, was employed by Northumberland County Counseling Services. Ms. Wiley was asked on direct examination whether she had “an opinion as to [the child’s] ability to in character tell the truth” (T.T. 11/18/87, p. 78). She then offered an opinion as to the child’s character for telling the truth, without any objection being lodged by the defense counsel. Supplemental post-verdict motions filed by appellant after withdrawal of his original trial counsel raised as an issue the ineffectiveness of trial counsel’s representation because of her failure to object to the expert’s opinion as to the veracity or credibility of the child victim. The trial court then issued the Order in question, basing its grant of the motion for new trial on the above allegation of ineffectiveness of counsel and the cases of Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), and Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). Subsequently, the Commonwealth timely filed this appeal.

Appellant argues the court erred in granting a new trial because the witness’ testimony did not infringe upon the fact finder’s obligation to determine the credibility of witnesses, and the introduction of testimony regarding the victim’s character for truthfulness was, in any event, harmless.

In Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988), a claim was made that defense counsel was ineffective in introducing the report of the Commonwealth’s expert and placing before the jury the Commonwealth’s expert’s opinion that the minor victim’s account of continuing sexual abuse was credible. In Thek, we reviewed the requirements an appellant must meet in order to establish a claim of ineffectiveness, stating the following:

[AJppellant must establish that: by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Petras, [368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987) ]; see also Commonwealth v. Pierce, 515 Pa. 153, 159-60, 527 A.2d 973, 975-76 (1987).

Thek, supra, 376 Pa.Super. at 396, 546 A.2d at 87 (footnote omitted). We found that the expert involved in that case had exceeded the permissible bounds of testimony by an expert in a child sex abuse case by specifically stating the victim was credible, because such testimony “invaded the province of the jury by presuming to pass directly upon the veracity of the witness.” Id., 376 Pa.Superior Ct. at 391, 546 A.2d at 83. Accordingly, we concluded in Thek that counsel had been ineffective because there was no objectively reasonable basis for permitting the admission of the opinion testimony of the expert, and the testimony was prejudicial to appellant because the child-victim’s credibility was essential to the Commonwealth’s case. Whether or not the claim of ineffectiveness of counsel will stand is dependent in this case on whether the testimony of the expert was admissible.

Thek purports to follow Seese, supra, which held that an expert may not be permitted to testify as to the credibility of children, as a class, who have been subject to sexual abuse, as this encroaches on the province of the jury. Seese also said expert opinion testimony is proper only where formation of an opinion on a subject requires knowledge, information or skill beyond what is possessed by the ordinary juror. Id. 512 Pa. at 442, 517 A.2d at 921. Where the question is one of whether a particular witness is testifying in a truthful manner, it must be answered in reliance upon inferences drawn from the life experiences and knowledge of the jurors, as well as the observation of the character and demeanor of the witness. Seese goes on to say, “[although opinion evidence is not to be permitted on the issue of a witness’ credibility, there remains, of course, all of the traditional methods for developing or attacking a witness’ credibility.” Id., 512 Pa. at 444, 517 A.2d at 922.

The law regarding testimony by an expert relating to the capacity of a child witness to tell the truth in an abuse case is clearly stated and follows a distinct pattern in Pennsylvania and a majority of the jurisdictions throughout the nation. Expert testimony in sexual abuse cases frequently relates to bolstering the credibility of child sexual abuse victims by describing behavior of sexually abused children, similar to that exhibited by the victim in the case, or by confirming, through recitation of reports and studies, the general reliability of victim reports of sexual abuse.

The general rule is, as stated in Seese, supra, that an expert witness may not present testimony as substantive evidence which establishes sexual abuse based on the behavioral pattern of the child. In Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985), this Court equated the “sexual abuse syndrome” with the “battered child syndrome” and the “battered wife syndrome” as a basis for introducing expert testimony as substantive evidence having probative value as to the occurrence of the sexual abuse. The better reasoning accepted by the majority of the nation’s jurisdictions is that the child abuse syndrome has been documented whereas the sexual abuse accommodation syndrome has not, based on the test for admission of expert testimony announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

In an article, “The Child Sexual Abuse Accommodation Syndrome”, 7 Child Abuse & Neglect 177 (1983), Dr. Roland Summit described the five characteristics commonly observed in sexually abused children:

1) Secrecy;
2) Helplessness;
3) Entrapment and accommodation;
4) Delayed, conflicted and unconvincing disclosure; and
5) Retraction

This syndrome does not diagnose and is not a test for sexual abuse. See People v. Bowker, 203 Cal.App.3d 385, 249 Cal.Rptr. 886 (1988); People v. Gray, 187 Cal.App.3d 213, 231 Cal.Rptr. 658 (1986). With the battered child syndrome, one reasons from the type of injury to cause for the injury. It has probative value to establish the cause as arising out of neglect or physical assault as opposed to accident. With sexual abuse more often than not, no visible evidence of injury exists, and in the sexual abuse accommodation syndrome, one reasons from behavioral characteristics observed in some but not all sexually abused children as probative of the existence of sexual abuse. Thus it has properly been held that this syndrome may not be used as substantive evidence and probative of sexual abuse. In Baldwin, supra, the court held there is logical relevance as a substantive matter, allowing direct testimony by an expert as to sexual abuse based on the sexual abuse syndrome. In Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987), while this Court found no conflict between Seese and Baldwin, it went on to say that Seese permits admission of testimony by an expert that supports credibility of a witness inferentially because it is consistent with behavior of victims of sexual abuse as a class, while denying it if it presumes to pass directly upon the veracity of a particular witness. Pearsall 368 Pa.Super. at 331, 534 A.2d at 109 n. 1. This statement is in error to the extent that it supports use of psychological observations simply to establish the credibility of children complaining of sexual abuse and therefore that the child being examined is telling the truth. See Seese and Davis, supra, and Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987). This goes beyond the permissible scope of expert testimony and invades the province of the jury. As stated above, the child sexual accommodation syndrome does not diagnose sexual abuse. At best, in some jurisdictions, expert testimony is admissible in rebuttal to show that the child’s symptoms and behavior are consistent with sexual abuse, or that the child probably experienced age-inappropriate sexual contact. Many jurisdictions permit expert testimony in rebuttal to show why children delay reporting sexual abuse.

In two cases, this Court appears to have gone in diverse directions in determining the admissibility of an expert’s testimony which would tend to bolster the child’s credibility as to his ability to understand or articulate matters relating to the abuse and to differentiate from fantasy, despite his age. In Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988) (Brosky, J., dissenting), a panel of this Court held such expert testimony is inadmissible as bolstering the credibility of the alleged victim and thereby invading the province of the jury. This holding was followed in Commonwealth v. Gibbons, 383 Pa.Super. 297, 556 A.2d 915 (1989). In Pearsall, supra, this Court held an expert witness could testify as to the mental and verbal capacity to verbalize and not fantasize the extent of incest and child sexual abuse based on observations and testing done on the child. Since the line of cases evolving in Superior Court presents conflicting views, we need to return to the pronouncements of the Supreme Court on these issues for guidance.

From the holding in Seese, it appears the testimony by Dr. Wiley was admissible, as rehabilitative or rebuttal testimony after the child had been cross-examined and her veracity brought into question. Prior to the expert’s testimony, the child victim testified and had been cross-examined by appellant’s attorney. The cross-examination, while not harsh, did test the child’s credibility as to the time of occurrence, her recollection of the event forming a basis of the charges, her reasons for not reporting the incidents promptly and her knowledge of terms used and how she acquired this. Dr. Wiley’s testimony, admission of which formed the basis for grant of a new trial, was specific to her experience with and actual knowledge acquired by reason of 20 or more interviews with the child over a period of nine months, as to the child’s character for telling the truth. This knowledge was acquired by discussions with the child and verifying the veracity and accuracy of her statements from her parents, grandparents and others.

Dr. Wiley testified in response to the prosecutor’s question as follows:

Q. And, you have known Jill now for—
A. Two years.
Q. Two years. And, do you have an opinion as to her ability to in character tell the truth?
A. Yes, she is — she has the character which can tell the truth in the sense that if she would be talking— whether she was talking about school or she would be talking about events just in the family, when I would check those facts then with her mother or with her grandmother I would then learn the same facts from that parent.

T.T. at 78 (emphasis added). Had the question been posed and the answer been given prior to cross-examination of the child by defense counsel, it would have been improper as character testimony when character was not in issue. After cross-examination by defense counsel, the child’s character for truth telling was in issue.

Under these circumstances, Dr. Wiley had actual knowledge of the child’s character and could testify in rebuttal and for rehabilitative purposes. This does not violate the rule established by Seese and is one of the accepted traditional methods referred to therein, to be utilized when character or credibility come into play. Dr. Wiley’s testimony did not enter the mine field of suspect expert testimony concerning the child sexual abuse accommodation syndrome discussed above, which attempts to match behavior of child abuse victims to other abuse victims in order to bolster their credibility. Here, she testified as to her knowledge of the child’s truthfulness when her character was called into question. This does not deprive the jury of its opportunity to ultimately make the determination of credibility as such evidence from expert or lay witnesses has always been admissible. In this instance, the statements of Dr. Wiley are not admissible because she is an expert but rather as a person with direct knowledge and experience with the witness to be able to reliably report as to her character.

For the above reasons, I believe the Commonwealth’s position is correct and should be sustained. I would vacate the Order of the trial court granting a new trial, reinstate the jury verdict and remand the case for sentencing.

      . We further note that the Commonwealth’s expert witness, Ms. Wiley, explicitly compared the general behavioral characteristics of sexually abused children to the specific behavioral characteristics displayed by the child at bar following the alleged incidents. Additionally, Ms. Wiley testified that a child of seven years old is able to separate truth from reality. All of this testimony encroaches upon the credibility-finding function of the jury and is clearly prohibited by recent Pennsylvania Supreme and Superior Court caselaw. See Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989); Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988).
      These cases were all filed subsequent to Smith’s trial. Because counsel shall not be deemed ineffective for failing to predict new law, Commonwealth v. White, 515 Pa. 348, 528 A.2d 596 (1987), we shall not find counsel ineffective for failing to object to this additional expert testimony.

      . The Commonwealth’s brief at page 5 suggests the question was actually if she had "an opinion as to [the child’s] ability to and character to tell the truth.” The difference in words is not critical to my position.

      . This holding is consistent with that of most jurisdictions throughout the country. See Thompson v. Alaska, 769 P.2d 997 (Alaska App.1989) (an expert witness may not give a direct opinion on the truthfulness of a child); People v. Gaffney, 769 P.2d 1081 (Colo.1989) (witness may not offer an opinion that a child was very believable); Tingle v. State, 536 So.2d 202 (Fla. 1988) (in rejecting expert testimony on credibility the court writes “[i]t was error for the state’s witnesses to directly testify to the truthfulness of the victim”); State v. J.C.E., 767 P.2d 309 (Mont.1988) (the court writes that as a general rule, expert testimony evaluating the credibility of a witness is inadmissible. Where a child witness is a victim and testifies, under State v. Geyman, 224 Mont. 194, 729 P.2d 475 (Mont.1986), an exception is made); State v. Eldredge, 773 P.2d 29 (Utah 1989) (an expert may not offer an opinion on the truthfulness of a child); State v. Madison, 53 Wash.App. 754, 770 P.2d 662 (1989) (an expert may not offer an opinion that a child was truthful; however, expert testimony is permissible to rehabilitate credibility ).

      . We must distinguish between the above class of testimony, which relies on behavioral characteristics, and expert medical testimony that offers proof that a child was sexually abused and relies in part on her testimony but is supported by a physical examination that confirms penetration, which might include the use of a colposcope (an instrument which provides low-power magnification, akin to binoculars, to aid in detecting subtle signs of genital injury). See People v. Mendi

        bles, 199 Cal.App.3d 1277, 245 Cal.Rptr. 553 (1988). The latter is admissible whereas the former is not.

      . The great majority of courts approve such expert rebuttal testimony. See, e.g., State v. Davis, 422 N.W.2d 296 (Minn.Ct.app.1988) (court approves expert testimony to inform jury that running away from home is common in sexually abused adolescents); State v. Bailey, 89 N.C.App. 212, 365 S.E.2d 651, 655 (1988) (expert could state why child would continue to cooperate with abuser); People v. Bowker, 203 Cal.App.3d 385, 249 Cal.Rptr. 886, 891 (1988) (child sexual abuse accommodation syndrome testimony admitted to explain delay); People v. Hampton, 746 P.2d 947 (Colo. 1987) (adult rape victim; rape trauma syndrome admitted to explain delay); Wheat v. State, 527 A.2d 269 (Del.1987); People v. Matlock, 153 Mich.App. 171, 395 N.W.2d 274, 277 (1986); State v. Sandberg, 406 N.W.2d 506, 511 (Minn.1987); Smith v. State, 100 Nev. 570, 688 P.2d 326, 326-27 (1984); People v. Benjamine R., 103 A.D.2d 663, 481 N.Y.S.2d 827, 831-32 (1984); State v. Hicks, 148 Vt. 459, 535 A.2d 776, 777 (1987); State v. Petrich, 101 Wash.2d 566, 683 P.2d 173, 179-80 (1984); Scadden v. State, 732 P.2d 1036, 1046 (Wyo.1987).

        But see Dunnington v. State, 740 S.W.2d 896 (Tex.Ct.App.1987) (delay in reporting not beyond ken of lay jurors, therefore, expert testimony not needed).
      Expert testimony is admissible to explain why children recant. See, e.g., State v. Lindsey, 149 Ariz. 472, 720 P.2d 73, 75 (1986).

      . While those cases do not effect the disposition of this case, since the issue here is a much narrower one which turns on basic rules of evidence as to rehabilitation of a witness from personal knowledge, it appears that a total review of this area of the law by our Supreme Court is needed when viewed against the rapidly developing law throughout the United States.

      . The majority holds this testimony was not admissible as invading the sacred province of the jury. This ignores the entire thrust of the law evolving toward providing a more even playing field for children of sexual abuse who must testify in court. The cases and evidentiary rules cited by the dissent are irrelevant to the present consideration. An adult on the witness stand has a far greater capacity to withstand cross-examination than a child. What may be a child’s limited knowledge of terminology, inability to be time or event specific, or capacity to.respond in a court environment can appear to a jury to be flaws in character or credibility. The law and the courts must and increasingly are sensitive to this inherent disability of child witnesses.
      Here, the testimony in question was directed toward the child’s general character (reputation) for telling the truth and is therefore admissible. In children cases, other than obtaining evidence from counselors, teachers or family members, it can be very difficult to obtain reputation evidence because of limitations on their activities in the community. A child of three has no peers in the legal sense and little ability to acquire a reputation in the community. A common sense approach must apply in establishing character or reputation. This can only be produced by adults such as parents, relatives, teachers and counselors who had opportunity to be with the child and observe her. The dissent's concern for the sacred domain of the jury is commendable but an equally important consideration is a fair trial for the child victim of sexual assaults. The dissent's position simply weighs the balance in favor of the defendant: Since the Commonwealth may never present evidence shov/ing the character or reputation of the victim in its case in chief, Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1970), it may present such evidence in rebuttal if it has been attacked by the defendant. Commonwealth v. Castellana, 277 Pa. 117, 121 A. 50 (1923). "Clear examples of what is proper rebuttal include: ... evidence rehabilitating the witness of the party with the burden of proof after the defendant has produced evidence in his case impeaching the credibility of those witnesses[.] Pennsylvania Trial guide, Rebuttal § 8.1, citing Risbon v. Cottom, 387 Pa. 155, 160-62, 127 A.2d 101, 104-5 (1956). Under our adversary system of trials, the opponent must be given an opportunity to meet the attack by evidence sustaining or rehabilitating the witness. One general principle operative under both case law and the Federal Rules of Evidence is that in the absence of an attack upon credibility, no sustaining evidence is allowed. A second truism is that when there has been evidence of impeaching facts, the proponent may bring contradictory evidence asserting the untruth of the alleged impeaching facts. Such a denial is always relevant and generally allowable. (Emphasis added). McCormick on Evidence, Third Edition § 49, Supporting the Witness.

      Pennsylvania case law and the hornbooks and treaties follow uniformly the Federal Rules of Evidence 608(a), Opinion and reputation evidence of character, which states:
      The credibility of a witness may be ... supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
      Dr. Wiley’s testimony was entirely proper and in conformity with the above principles.
      The Pennsylvania Legislature has paid particular attention to the unique handicaps of child victims and witnesses in criminal proceedings. In its Declaration of Policy, 42 Pa.C.S. § 5981, the legislature states:
      In order to promote the best interests of the children of this Commonwealth and in recognition of the necessity of affording to children who are material witnesses to or victims of crimes additional consideration and different treatment from that of adults, the General Assembly declares its intent, in this subchapter, to provide these children with additional rights and protections during their involvement with the criminal justice system. The General Assembly urges the news media to use restraint in revealing the identity or address of children who are victims of or witnesses to crimes.
      It goes on to provide for children under 14, and a rebuttable presumption in favor of children 14 to 15 years, that support services are required, video taping of depositions in lieu of direct testimony in court is permissible or testimony at trial by closed-circuit television, in addition to other protective measures.
      The majority, rather than recognizing the special hardships to children in criminal proceeds, denies protections of the law afforded to every adult. The child in this case is twice victimized by the majority’s approach.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Pottsville Borough, Appellant, v. Pottsville Gas Company.

      Municipalities — Ordinance—Motives of members of council — Evidence.
    1. The legality of the acts of legislative or corporate bodies cannot be tested by the motives of individual members or the adventitious circumstances they may lay hold of to carry their measures.

      Appeals — Assignments of error — Evidence.
    2. Where the admission of a paper in evidence is assigned as error, but the paper is not printed in appellant's paper-book, the assignment will be disregarded.
    3. Where an assignment of error to the admission of testimony fails to include in the assignment the testimony admitted, the assignment will not be considered.

      Boroughs — Ordinances—License fee — Openings in streets.

    4. The tribunal having jurisdiction to decide whether or not, under an agreed or duly ascertained state of facts, there being no conflict of evidence as to essential facts, an ordinance is unreasonable, is the court.
    5. An ordinance imposing a license fee for a permit to make an opening in a street amounting to $3.00 for each opening not exceeding three feet wide and thirty feet long and for any additional opening in width or length at the same time and place, five cents per square foot, is unreasonable and void where it appears that the borough expended nothing for supervision and inspection until three years after certain excavations sought to be charged for had been made, that it then employed a clerk to make out permits, and an assistant engineer, and the evidence for the company sought to be charged shows that the work of refilling had been carefully done, that defects had been promptly repaired, and that the permit charges claimed were greatly in excess of the actual cost of making, refilling and repairing the street openings made by the company.
    February 26, 1909:
    Argued Dec. 11, 1908.
    Appeal, No. 184, Oct. T., 1908, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1903, No. 232, on verdict for defendant in case of Pottsville Borough v. Pottsville Gas Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace. Before Shay, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (1-5) various rulings on evidence referred to in the opinion of the Superior Court; (6-9) various instructions and refusal to give binding instructions for plaintiff.

      E. P. Leuschner and J. B. Reilly, for appellant.

      George M. Roads, for appellee.
   Opinion by

Porter, J.,

The only question involved in this case is the validity of an ordinance of the borough of Pottsville imposing a charge for a permit to make openings or excavations in public streets, and directing the method of taking out such permits. The ordinance prohibited the making of excavations or openings in streets by any person, firm, association or corporation, without having first obtained a written or printed permit from the commissioner of highways, authorizing such opening or excavation, and fixed a charge or license fee for the same. The portion of the ordinance fixing the fee, so far as material to this case, is as follows: “For any opening or excavation not exceeding three feet wide and thirty feet long in any macadamized or unpaved street, lane or alley, three dollars (13.00) and for any additional opening in width or length at the same time and place, five cents per square foot.” The defendant contended that the ordinance was invalid, for the reason that the license fee was grossly excessive. There was a verdict and judgment for the defendant in the court below and the plaintiff appeals.

That the legality of the acts of legislative or corporate bodies cannot be tested by the motives of individual members, or the adventitious circumstances they may lay hold of to carry their measures, seems to be a matter free from doubt; Borough of Freeport v. Marks, 59 Pa. 253; Sunbury & Erie Railroad Company v. Cooper, 33 Pa. 278; Commonwealth v. Moir, 199 Pa. 534. The defendant company had made Mr. Pugh, the borough engineer, its own witness, and proposed to show by him that he had furnished to the borough councils estimates upon the basis of which this ordinance was passed, and that he had included in said estimates the cost for repairs of the highways after they had been opened; this was permitted, under exception by the plaintiff. The evidence certainly ought not to have been admitted and if it had been submitted to the jury and the question were one upon which the jury ought to have passed, the first, second and third specifications of error would have to be sustained. This error of the court was, however, a temporary one. The evidence was withdrawn from the jury and the court in its charge said: “ Right here we want to say that what moved the members of councils to pass the ordinance is not the subject of inquiry before the jury.”

The paper admitted in evidence, subject to the exception which is the foundation of the fourth specification of error, is not printed in the paper-book of the appellant and this specification must for that reason be disregarded. The appellant does not print in connection with the fifth specification of error the testimony which was admitted under the exception upon which that specification is founded, and the specification is for that reason dismissed.

The tribunal having jurisdiction to decide whether or not, under an agreed or duly ascertained state of facts, there being no conflict of evidence as to essential facts, an ordinance is unreasonable, is the court: Kittanning Borough v. Kittanning Consolidated Natural Gas Company, 26 Pa. Superior Ct. 355; Kittanning Borough v. Western Union Telegraph Company, 26 Pa. Superior Ct. 346; Schellsburg v. Western Union Telegraph Company, 26 Pa. Superior Ct. 343; Kittanning Borough v. Armstrong Water Company, 35 Pa. Superior Ct. 174; Kittanning Borough v. Gas Company, 35 Pa. Superior Ct. 167. The case presented in the court below was not free from difficulty, but we are satisfied that the result reached was, under the evidence presented, the proper one. The ordinance involved presents peculiar features; the charge for making openings in macadamized streets is, for any opening not exceeding three feet wide and thirty feet long, $3.00, and for any additional opening in width or length, at the same time and place, five cents per square foot. When the length of an opening exceeds thirty feet the charge is five cents per square foot; if the ditch is three feet wide that would amount to fifteen cents per lineal foot, if it is but two feet wide it amounts to ten cents per lineal foot, or in the first case the charge would be $15.00 for 100 feet and in the second case $10.00 for the same distance. This necessarily applies to all gas mains placed in macadamized streets and would amount to a license charge of from $528 to $792 for each mile of main pipe laid by the defendant company. The openings, for which the fees are sought to be collected in the present case, were made in the year 1903. This action was instituted in that year, and after a first trial, which resulted in a verdict and judgment in favor of the plaintiff, the case was brought to this court upon appeal, and in April ,1907, the judgment was reversed: Pottsville Borough v. Pottsville Gas Company, 33 Pa. Superior Ct. 480. The borough had in that trial produced evidence which established, if it established anything, that the expenditures by the borough for the purposes for which it might lawfully impose this fee were merely nominal, that there was no reasonable necessity for the expenditure of more than such nominal amount for such purposes, and that the borough sought to recover upon the ground that it was from time to time compelled to expend money in repairing defects in the streets which had. resulted from improper refilling of the trenches. This court held that the cost of such repairs could not be considered in determining the reasonableness of the charge imposed to meet the cost of reasonable inspection, supervision and surveillance of the making of the excavations and the results following the same. The evidence produced at the trial from the result of which we have the present appeal clearly established that the borough had spent nothing in issuing the permits for and performing the duty of inspection and surveillance of the trenches dug in the streets, until after the former decision by this court. The borough did subsequently to that former decision, and about three years after this action was brought, employ a clerk for the purpose of issuing these permits, paying that clerk a salary which amounted to about $1.60 for each permit. The testimony of all the witnesses examined upon that point agreed that the issuing of one of these permits and making the entry on the stub thereof, which was the only record for which provision was made, involved no more labor than the ordinary writing of a check and filling the stub of the same. The evidence also disclosed that subsequently to the former decision in this case an assistant engineer was employed. All the evidence as to the provision which the borough authorities had made for the inspection indicated that that provision had been made, in view of the former decision in this case, for the purpose of spending the money, rather than with the intention of providing for a reasonable inspection and supervision of the trenches. The mere fact that the borough had expended no money for the purpose of inspection and supervision from the time the ordinance was passed down until more than two years after the trenches involved in this case had, according to all the testimony, ceased to require inspection, would not of itself be sufficient to justify the court in holding the ordinance unreasonable. “The fact that the borough neglected its supervisory duty and incurred no expense for police supervision is held to be a relevant and highly significant fact in an action brought to recover the license fee, and a fact that will constitute a defense when coupled with the fact that the fee is grossly disproportioned to the amount of any expense that might have been reasonably and fairly incurred from the most careful, thorough and efficient inspection and supervision possible, and for all measures and precautions that could be required to be taken by the municipality for the safety of its citizens and the public:” West Conshohocken Borough v. Conshohocken Electric Light & Power Company, 29 Pa. Superior Ct. 7.

The defendant company produced clear and satisfactory evidence as to the manner in which it made excavations in the public streets, guarded the same while open and caused the same to be refilled; that the refilling was done in a very careful manner and under the constant supervision of an expert; that-the trenches after being refilled were very frequently inspected by its expert employees for a year or, in case of necessity, for a longer period, and in case any defects developed they were promptly repaired. It also produced evidence showing the actual cost of making, refilling and repairing of the street openings made by defendant company, during the entire years 1903 and 1904, to have been $1,707.85, and the permit charges for the same openings, under the terms of this ordinance, amounted to $2,278.15. This evidence covered the entire period involved by the license fees in this proceeding. The defendant also produced evidence as to the expense of proper supervision and inspection of the trenches while open and so long afterwards as reasonably necessary. These several facts, standing alone, might not have been sufficient to warrant the court in holding the ordinance unreasonable, but taken together and in connection with the fact that the borough spent nothing for supervision until more than three years after the making of these excavations had elapsed, they furnished a standard by which to measure the reasonableness of the charge fixed by the ordinance to reimburse the borough for the anticipated expense incident to proper supervision and inspection by its officers and agents, and the issuing and making a record of the license: Schellsburg v. Western Union Telegraph Company, 26 Pa. Superior Ct. 343; Kittanning Borough v. Western Union Telegraph Company, 26 Pa. Superior Ct. 346. The entire testimony in the case was such as to rebut the presumption in favor of the reasonableness of the ordinance. The court would have been warranted in declaring the ordinance void, and the submission of the question of the reasonableness of the fee to the jury is a matter of which the appellant has no just ground of complaint. The judgment is affirmed.


author: Henderson, J.,

text:
    Spring City Brick Company, Appellant, v. Henry Martin Brick Machine Manufacturing Company, Incorporated.

      Trial — Charge—Appeals—Portions of charge assigned as error — Inadequacy of charge.

    1. A charge of a court alleged tobe inadequate should be viewed on appeal with reference to its general effect. If as a whole it is not calculated to mislead, it is not erroneous. It is not difficult in a charge growing out of controverted allegations of fact to select some portion which, apart from its context, seems subject to objection, but it would be unjust to the trial judge and obstructive to the administration of justice to take strict account of a single period without reference to the other portions of the charge.
    2. Assignments of error to the effect that the court below did not specifically charge as to certain matters will not be considered where no request for such instructions on such matters is made.

      Sale — C ontract — W arranty — M achine — Evidence.
    3. In an action to recover for a breach of warranty in the sale of a brick drying machine, it appeared that the written agreements described the machine as having a holding capacity of 32,000 wire cut brick. The plaintiff claimed, but without any legitimate evidence to support the claim, that the word “ capacity ” had reference in the trade to daily productive capacity. There was no allegation of deceit, and it appeared that the apparatus was bought after an inspection of a similar plant. The only objection raised by plaintiff was that it was not as productive as they expected it to be. It did, however, dry from 15,000 to 16,000 brick per day. There was evidence that after the plaintiff had discovered the defect he gave a note for the balance of the purchase money, and paid part of the note. The court submitted evidence offered by the defendant to explain the alleged insufficiency of the machine, as due to the plaintiff’s own fault. Held, that the whole case was for the jury, and that a verdict and judgment for defendant should be sustained.

      Argued Dec. 11, 1908.
    Appeal, No. 106, Oct. T., 1908, by plaintiffs, from judgment of C. P. Montgomery Co., March T., 1907, No. 132, on verdict for defendant, in case of Spring City Brick Company v. Henry Martin Brick Machine Manufacturing Company, Incorporated.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for breach of warranty for the sale of a machine.
    Weand, J., charged as follows:
    The Spring City Brick Company is a corporation doing business at Spring City, in this state, in the manufacture of bricks. The Henry Martin Brick Machine Manufacturing Company is a corporation that deals in what is known as a dryer, the object of which is to dry bricks speedily. Two suits were brought: one by the Spring City Brick Company against the Henry Martin Brick Machine Manufacturing Company, and .the other by the Henry Martin Brick Machine Manufacturing Company against the Spring City Brick Company; but both cases have been tried as one, and therefore you will only be required to render a verdict in the one case. In order to thoroughly and intelligently understand what the issue here is we must first know the history of the case.
    It appears that Mr. Boyer, who is the president of the brick company, saw an advertisement of the Martin company in relation to the dryer. A correspondence was opened between the parties, which resulted in Mr. Martin and Mr. Boyer, representing the different parties, getting together. As a result of their meeting Mr. Boyer was invited to go to Egg Harbor, New Jersey, where one of the Martin company's dryers had been erected and was in operation. He was also invited to go to Haverstraw, New York, where another had been erected and was in operation. Mr. Boyer visited both of these places and had a meeting with Mr. Martin in New York. At that meeting, as I understand it, the subject and the price of this dryer was discussed between them. The Martin company proposed to erect a dryer of a certain capacity, complete in all its parts, for the sum of $6,000. This, of course, would include the erection • of a building and everything appertaining to the dryer. Either at that meeting or at a subsequent one Mr. Boyer stated that in this calculation of $6,000 there was included the cost of necessary steam pipe, which he said he could buy and sell cheaper than the Martin company had placed it at. He also asked them whether they did not have to employ a local steam fitter or plumber to erect the plant, and stated that he was in that business, and that he might as well do it. It was then arranged that Mr. Boyer, on behalf of the brick company, should do the plumbing, should supply the necessary piping, and erect the building; and in consquence there was a reduction made in the price from $6,000 to $2,100.
    The parties appear to have had other meetings, but the result of the whole arrangement was, that at a meeting held in Philadelphia at the Windsor Hotel, Mr. Boyer, on behalf of the brick company, and Mr. Martin on behalf of the dryer company entered into a written contract for the performance of certain things on their respective parts. This contract required that a certain amount of money should be paid down at a certain time. [The dryer company delivered on the ground, as specified in the contract, the necessary parts of this dryer, as set forth in the contract. Mr. Boyer, on behalf of the brick company, proceeded to erect the building and put the parts together, he supplying the piping, valves, and so forth, according to his part of the arrangement.] [1] The brick company paid the stipulated sum of $1,050 which the contract required them to pay on delivery of these parts. The plant was now put in operation. After a certain time the brick company paid another installment of $500 on the contract and gave their note for the balance, which was $630.
    On February 28, 1907, the Spring City Brick Company brought suit against the Henry Martin Brick Machine Manufacturing Company, and on the same day the Henry Martin Brick Machine Manufacturing Company brought suit against the Spring City Brick Company. The suit of the brick company against the Martin company was for damages, which the brick company alleged that they had sustained by reason of false representations made by the Martin company with reference to the ability of the dryer to perform certain work. The suit of the dryer company was on the note which represented the balance due under the contract. It is claimed by the brick company that the Martins made false representations in this, that they represented to Mr. Boyer that this dryer would dry 32,000 bricks in from ten to twelve hours; and it is now claimed in the suit of the brick company that the dryer people failed to do this amount of work, and that this contract was entered into upon the faith of those representations, and they seek now in this suit to recover back what they say they have sustained in the way of loss by reason of those false representations.
    In order to determine what the contract was between these two parties it is necessary to refer to that which is written. When parties meet together and reduce their contracts to writing, the writing is viewed by the law as the evidence of what the agreement was which was made between the parties, and that whatever is not part of the written agreement is no portion of the contract. "That which is not found in the writing is presumed to have been abandoned by one party or the other, unless it appears by clear, precise, convincing and satisfactory proof that the part which it is alleged is not in the contract was not in it because of some fraud or by accident left out, or by mistake of the parties was not incorporated therein. It is true that there are contracts oftentimes made by parties where the conversation that took place between the parties at the time they were entering into the contract may be admitted for the purpose of explaining something in the contract which of itself is left doubtful. It is true, as the courts have said, that parol evidence is admissible to show a contemporaneous agreement which induced the execution of the written obligation.” The law says that the written agreement is the contract between the parties, and that when any person seeks to change a contract in writing he must do so by clear, precise and indubitable proof; and by that kind of measure of proof is meant that the sources from which the testimony comes must be credible, the statements of the witnesses must be clear and distinct as to what was said and done, and all together it must be of a character to convince the minds of the jury that the part claimed to have been omitted either by fraud, accident or mistake of the parties, or if not so kept out of the contract, that the party who complains of the omission was induced to sign the contract by a contemporaneous agreement made at the time the contract was signed.
    [Now, therefore, we first turn to this contract to see what was written therein; and in reading it we find that there was no express agreement that this dryer, either if sold as a whole or if sold in parts, was guaranteed to do any specific work; and therefore unless the brick company convince you by evidence that the law says must be clear, precise, convincing and indubitable that the Martins made an agreement, upon which Mr. Boyer relied, that it was to do a certain amount of work, the brick company has no case.] [2]
    [We now turn to the testimony relied upon by the brick company to convince you that this agreement was made. It is •said by Mr. Boyer that at these various interviews Mr. Martin always said and guaranteed that the dryer would dry 32,000 bricks in from ten to twelve hours. You have seen him upon the stand and you have heard his testimony upon that point. The only corroborating testimony that he has is that of a Mr. Curren, who states that at a meeting between Mr. Martin and Mr. Boyer, at Mr. Boj'er’s office, as he entered the office he overheard a conversation between them to the effect that the dryer was to dry 32,000 bricks in the time specified. These are the two witnesses upon whom the plaintiffs must rest their case.] [3] And if they have convinced you according to the measure of proof as I have laid it down to you, that that statement was made, then they have progressed in the first step towards a recovery.
    Now, no matter what might have taken place at the first or the second interview, the question is, was that the agreement that induced the signing of the contract up to the time when it was signed? Mr. Boyer says it was up to that time. Mr. Currents testimony relates to the interview in Norristown, and you will remember that the contract was signed in Philadelphia; and therefore the conversation which Curren overheard was not the last conversation between them; but still it can be used to corroborate Mr. Boyer and to show that these assertions had been made by the Martins. Now I charge you that unless the brick company have established to you by the weight of the testimony that that was the contract or agreement, your verdict would have to be in favor of the Martins for the amount of their note with interest. It is a rule of law that the plaintiff must convince the jury by the weight of the testimony. If it stands evenly balanced, or if the jury, are in doubt as to which way it inclines, it must be for the defendant, because then the plaintiff has not established it by the weight of the testimony.
    On the part of the Martins this conversation and agreement is denied. Mr. Martin states it most positively that he never agreed to that at any time in the manner stated by Mr. Boyer. While the Martins do not deny that they would stand by an agreement that their machine under certain circumstances would do a certain amount of work, they contend that under this agreement no such understanding was had. You have, therefore, the testimony of the defendants in flat contradiction of that of the plaintiffs, and it is for you to say which side you will believe. It is said on the part of the defendants that where they contract to deliver a dryer, put up and arranged according to their system and their blue prints and plans, for which they are responsible, there is charged as the price of that machine a certain amount to indemnify them against mistakes of their men or against accident, and because they are in business for profit and therefore expect to make something out of their contract; but they contend that where they only sell the material parts and the buyer of these parts undertakes himself to supply the workmen to erect the parts and put them together, they never would guarantee in the manner stated by Mr. Boyer; and [this very contract in certain parts provides: “ It is also agreed that the party of the second part will furnish the foundations for the material, put up the entire building, dig trenches, and furnish well for return hot water, and that the party of the first part shall not be liable for any part of the material not working properly furnished by the party of the second part. The party of the second part shall be responsible for any damage or loss by fire after it reaches Norristown.” So you will see by this agreement that the brick company had assumed a certain responsibility, which, if it had been for the sale of the entire dryer to be put up by the Martin company, they would have to assume; and they argue to you that it is unreasonable to suppose that they would guarantee this part of the work when somebody else had assumed the responsibility of putting it together and supplying the parts.] [4]
    Therefore, your first question is, what was the contract between the parties? [If you find that there was no agreement as testified to by Mr. Boyer, then you can stop right there and render, a verdict for the dryer company for the amount of their note with interest.] [5] Assuming, for the sake of the instructions to be given you that the jury find in favor of the brick company up to that point, then your next query will be, did the machine do its work properly? It is claimed by the brick company, and testified to by Mr. Boyer and the rest of their witnesses who were concerned in its operation, that it did not dry the 32,000 bricks in the specified time. They all agree that so far as that was concerned it was a failure. Is there any evidence to contradict that? If there is, you will take that into consideration. If you find that it did not do that amount of work, then you will proceed to another question before the plaintiffs are entitled to recover. [If it did not do the work, why not? Because if the failure to do the work properly was the fault of the construction of the machine, then the fault is not with the dryer company but is with the brick company, which undertook to put it together.] [6] It is claimed by the defendants that'the reason why this machine did not do the work, if it did not, was because Mr. Boyer departed from the blue prints and put this machine together in a manner to suit himself. If that is the case, if he failed to follow the blue prints as furnished by the dryer company, and adopted a system of his own, and that was the reason of the failure, the brick company must suffer, and not the dryer company.
    You have heard the testimony of a number of witnesses upon this question: Mr. Mehaffey says he was the man that was sent by the dryer company to superintend the construction of it, Mr. Boyer to do the work. He says that when he went there it had been partly erected. He says that he told Mr. Boyer that it was not according to the plans and blue prints. The blue prints were there, he says. Then he tells you why it was not the difficulty with the foundations that the ground was uneven, and so forth, and that the cupola was not right; and he declares that Mr. Boyer said that as done it was better than the blue prints. He says that the plans contemplated steam to be introduced in a certain way, and that this was not done. This man, although the employee of the dryer company, after-wards entered the employ of the brick company to manage it, and he worked there for some time; and he tells you why at one time it would not work. He says that he tried it one night but they ran short of coal and that therefore it could not be tried thoroughly; and [he tells you that what the real trouble was, according to his opinion — it is for you to judge, of course, whether it is correct or not — was the trouble with the labor and getting the bricks out to the kiln, and in this he is corroborated by other testimony, going to show that the complaint which the brick company made was because of the difficulty of getting men to operate the plant and of the difficulty of getting the bricks from the dryer to the kiln. Mehaffey says that they did not have force enough, and so forth, and that was the reason why, if the 32,000 bricks had been burned, they could not have been gotten out.] [7]
    It is also claimed by the defendants, by several witnesses, that there was a faulty construction in the manner in which the building itself was erected; that in order to preserve a high, even temperature it was necessary that the building should be inclosed in a certain way, but that this building was not so erected; that there were openings along the bottom which al lowed the air to get in. [It is also said that the foundations were not properly constructed in order to carry off the moisture which was driven from the bricks by the steam; if this was so, whose fault was it? If it was the fault of incompetent men of incompetent construction of the brick company, they must bear the loss.] [8] [You will recall the testimony of Mr. Grob, the German who operated the plant at Egg Harbor, and he says to you that when Mr. Boyer came to examine the plant at Egg Harbor, he, Grob, showed him all over and explained to him how it should be operated; and there was one caution which he particularly gave to him: “Be sure to follow the blue prints. I made that mistake and it took us some time to correct it.” That was the caution which he then gave to Mr. Boyer before the contract was signed.] [9] [It is claimed by the witnesses who saw this dryer put up, and by both of them, that Mr. Boyer said he had ideas of his own; and if he had, and if they were different from the ideas as expressed in the blue prints, and he followed them, then it was his misfortune and not the fault of the dryer company.] [10]
    It is also said that Mr. Callaway, who was sent there by the dryer company, condemned this machine and expressed surprise that the dryer company would put it up. That was very strong language to use. He is not here to explain what he meant. But Callaway had been employed by the dryer company to erect their dryer according to their system and their plans and their blue prints, and when he came there and saw the manner in which it was constructed he then used that language. If it was in his mind at that time that the dryer company had done this work in that way then his language can be explained, or can the jury find that although he was in the employ of the dryer company he would just on that condemn their whole work? It is unfortunate that he is not here, but it is for the jury to place such construction upon his language as they may think proper, if they think that what he said there ought to bind the defendant company.
    I can say to you that if you find that this dryer did not work, although guaranteed, because it was improperly constructed, and if you find that Mr. Boyer said that he had ideas of his own, if you find that it was constructed according to his ideas and not according to the blue prints, and that that was the cause of the failure, -then the brick company must suffer and not the dryer company. It is said on behalf of the dryer company that Mr. Boyer requested the privilege of supplying the piping, doing the plumbing work and erecting the building, and their contract no longer was for the erection of the dryer, but merely for the sale of certain parts of the dryer, and that because they only sold those parts the price was reduced, and they had no responsibility for the work which they were not required to do. If we turn to the contract itself it may throw some light upon this subject. [The contract says that the dryer company agreed to Mr. Boyer the hereinafter described materials — not a dryer — but the hereinafter described materials for the construction of one latest improved Martin patent steam dryer, having a holding' capacity of 32,000 wire cut bricks, calculated on the basis of nine bricks to each palette.” What was that material tobe? Then they go on to describe what it is: “Forty complete cast-iron racks” and so forth, and describe all the parts constituting the material which they agreed to deliver, and it is admitted by the brick company that every article mentioned in this contract was delivered. When this contract says that it is a contract for materials for the construction of a thing, and then provides that the person who buys it is to construct it, it is a question for the jury as to what was sold.] [11] Generally the court is required to construe written contracts, but in many cases the question can be referred to the jury; and I now refer it to you, as to whether or not under that contract the dryer company agreed to furnish a dryer taken as a whole to do the work or whether they merely contracted to serve certain materials, the brick company to furnish the other and to construct it according to the plans and specifications of the dryer company.
    [If they only contracted to serve parts, we can come back to the question, would they have guaranteed the thing to do certain work when the brick company itself was to put it up?] [12]
    It is said by the defendant company that no complaint was ever made about this machine not doing its work until this suit was brought, and they have introduced the testimony of one, even two witnesses — two, I think — that Mr. Boyer agreed that the dryer had done the work. At the meeting in Lancaster Mr. James P. Martin testified that Mr. Boyer said that, “So far as the dryer is concerned, there is no fault, it is a good dryer; but the handling is too hard and the labor question is what troubles us.” On the part of the other Martin they all said that there was no complaint until the suit was brought, except the complaint about the incompetency of their labor and the difficulty of their getting labor, because of the difficulty of removing the bricks from the dryer to the kiln, and, I suppose, because of the hard work owing to the temperature. Mr. Shaar was sent to Spring City as late as June and July with a statement. He says Mr. Boyer made no complaint at that time about the dryer. Mehaffey says there was no complaint made whilst he was in the employ of the brick company as to the dryer not being all right, but it was as to the labor question and the difficulty of removing the bricks.
    If you find this to be the case, the next question is, why does the brick company take this position? If it was not because of the work of the dryer itself, but merely because they found that the system which they had bought required too much labor to remove the bricks, then that is no fault of the dryer company, because Mr. Boyer on his visits to Egg Harbor and Haverstraw had full opportunity of seeing what labor would be required and what the difficulty was; and therefore if their position to-day arose from the mere fact that it cost them too much or that they could not get hands to do the work, that was no fault of the dryer company. It is said by the plaintiffs, however, that they did complain, that they wrote a letter in July to the dryer company in which they complained of this machine. You will recall the expression used: “They have had considerable trouble in getting dry brick enough to keep the plant moving.” Was that the fault of the dryer, or the fault of the temperature, or the engineer who had it in charge, or because they did not have labor enough?
    You will remember the conversation that Mr. Grob had with Mr. Degan, I think it was one of the employees of the brick company, in which he complained that they had some man who had been accustomed to the old system of doing things. What importance can you attach to that as bearing upon the question as to whether that complaint really was that the dryer would not do the work, or whether it was because of the difficulty of getting the bricks out, that they could not get enough, or because the labor question entered into it?

      Now we come to another point in the case which may have great significance. [This dryer was delivered in April, if I recall it. The first complaint, if it was a complaint, was this letter dated in July. Mr. Boyer says, and his witnesses, that at no time did the dryer work satisfactorily. They had it, then, part of April, May, June, and part of July, and therefore they had an opportunity to give it a fair test.] [13] Yet we find that on July 29 the brick company sent a note, the balance due as per statement, showing that there was due then $1,126.71. On July 31 the dryer company acknowledged the receipt of that letter. On October 16 the brick company wrote the dryer company that the note was about falling due, and asking for a renewal by payment of $600 on account. On October 17 the dryer company wrote back accepting the note, and on October 30 the brick company sent a new note and paid $500 on account
    [The question now for you to consider is, whether this conduct was consistent with the theory that the brick company was dissatisfied with the dryer. They had had months to investigate the matter. According to their own witnesses they knew that it was a failure, and yet they themselves sent to the dryer company a written statement acknowledging their indebtedness and paying $500 on account and giving a new note for the balance. What construction do you place upon that act? Would an ordinary business man, if he knew on October 30 that he was not indebted to these people, that he had been wronged by fraudulent representations, and had been induced to buy an article which proved an entire failure, yet at that time make out a statement which, in so many words, said: “We owe you so much, and we pay you $500 on account, and agree by this to pay you $630 more?” This is a very important question for you to take into consideration as bearing on the faith of the brick company when it declares that the machine had been a failure and that they had expressed their dissatisfaction with it. If you find from their conduct that up to that time they had admitted, by the payments or by their failure to complain as to the working of the machine, you will be justified in finding, that they were satisfied with it and that the defense is based upon good grounds.] [14]

      If you find a verdict for the brick company, then they will be entitled to whatever loss they have sustained. They claim that they have paid $1,550, that they have erected a building which is of no use to them in order to accommodate this dryer that they have spent a certain amount for it, and that by reason of the failure of this machine to work they lost $237.52 on a contract, and they ask you to compel the dryer company to pay them back this amount of money. If they have been deceived in the amount they state and you find that the dryer company guaranteed this machine to do this amount of work and that if it did not do it through no fault of the brick company, then they would be entitled to a verdict at your hands. [But if, on the contrary, you find that there was no guarantee, or that if there was the machine failed because it was improperly constructed or improperly managed, then your verdict would have to be in favor of the dryer company for the amount of their note with interest.] [15] [But if you find a verdict for the plaintiffs you cannot, in any event allow, them the $500 which was paid in October, because then they knew, or say they knew, that it was a failure, and if then they paid any amount of money voluntarily it was at their own risk and they cannot recover it back.] [16]
    The defendants, the Martins, have asked me to charge you upon certain points of law.
    3. If the jury find from the evidence that the Martin company did guarantee the dryer to dry 32,000 brick per. day, and that the dryer would not by proper handling do as guaranteed, then the plaintiffs are not entitled to recover unless you find from the evidence that the plaintiffs made known to the Martin company the failure of the machine to do as guaranteed and gave them an opportunity to alter or adjust the machine so as to give the guaranteed results. Answer: I so instruct you: If the jury find that the machine did not do its work as guaranteed it was the duty of the brick company to notify the dryer company to that effect in order to enable them to remedy any defects which might exist therein. [17]
    5. If there was a guarantee as alleged by plaintiffs, it was the duty of the plaintiffs to promptly notify the Martin company of any failure of the machine to do as guaranteed. Answer: This is true. [18]
    February 26. 1909:
    Verdict and judgment for defendants for $663.66. Plaintiffs appealed.

      Errors assigned were (1-18) above instructions, quoting them, and (19) that the charge was inadequate.

      Louis M. Childs, with him Charles D. McAvoy, for appellant.

      John Faber Miller, with him Samuel H. High, for appellees.
   Opinion by

Henderson, J.,

This action was brought to recover damages from the defendant on an alleged warranty of a brick dryer sold to the plaintiff by the defendant. An action was tried at the same time between the same parties for the balance of purchase money for the apparatus. We are not furnished with a copy of the pleadings, but conclude from the statement of the questions involved that the plaintiff declared on a parol contract of guaranty contemporaneously made with the written agreement under which the dryer was bought.

The first of the questions involved is stated to be “sufficiency of evidence to modify written contract by contemporaneous agreement. A. contracted with B. to purchase a brick dryer to dry a certain number of bricks per day. ‘A.’ claimed that at the execution of the contract ‘B.’ guaranteed that it would do the work. This ‘B.’ denied, etc.” The discussion of the case by the appellant’s counsel covers a much wider field from which it might be inferred that the plaintiff contended for three positions: (1) that there was an express guaranty in their written agreement with the defendant; (2) that there was a contemporaneous parol agreement of guaranty, and (3) that there was a failure of consideration by reason of the inefficiency of the dryer.

The first sixteen and the nineteenth assignments of error relate to the charge of the court; the seventeenth and eighteenth, to the answers to two of the defendant’s points. The appellant made no request for particular instructions and did not submit any points. The assignments cover small portions of the charge and criticise the court in some instances for having said too little and in others for having assumed too much.

We do not understand the five and one-half lines from the charge set forth in the first assignment to have been intended by the trial judge as a statement of the material facts in the case, nor of the attitude of the respective parties under the contract. It is a brief statement of a part of what was done by the parties under the express terms of the written agreement. It cannot be questioned that the building, the boilers, the piping, the valves, the pallets, etc., were necessary parts of the dryer plant and it is admitted that these were to be furnished by the plaintiff. The court did not undertake to say in this connection what the rights of the parties were either under the written or the alleged parol agreement. It was part of an introductory statement leading up to the inquiry what the contract was between the parties and was not an improper reference to the written agreement. Conceding that a representative of the defendant was present to superintend the setting up of the machinery the fact remains that the plaintiff erected the building and put the parts together. Taking into view the whole structure of the charge it would not have been in logical order to discuss the evidence suggested by the appellant at this point in the charge.

The question raised by the second assignment is not within the statement of the questions involved; for this assignment is based on the contention that there was a written agreement of guaranty in the contract, the allegation being that that part of the contract by which the defendant undertook to furnish “the hereinafter described materials for the construction of one latest improved Martin Patent Steam Dryer having a holding capacity of 32,000 wire cut brick calculated on the basis of nine bricks to each pallet” amounted to a warranty of capacity because of the technical meaning of the word “ capacity.” Three witnesses were called as experts by whom it was undertaken to show that the word “capacity” in a contract for a brick dryer has reference in the trade to daily productive capacity. Of this evidence it may be said in the first place that none of the witnesses referred to a contract in which the capacity of the apparatus was restricted and limited to space as in this case. One of them, Mr. Chambers, did not know anything about the trade of selling other brick dryers than tunnel dryers in which he dealt; another, Mr. Briner, did not claim to be an expert and thought the contract ambiguous, the third witness, Mr. Cox, had had experience with but one company and that engaged in the construction of tunnel dryers; and none of them based his opinion on a contract for a holding capacity on a basis of a given number of bricks to each pallet. If the question were before the court under the pleadings the plaintiff failed to show by evidence of this character that there was an agreement in the written contract that the dryer should have a daily productive rather than a containing capacity of 32,000 bricks.

The argument on the third assignment is not elaborated and we do not clearly apprehend the appellant’s view. After a careful examination of the evidence we have not found anything which would justify the conclusion that the court had not correctly stated the situation with reference to the plaintiff’s allegation that there was a parol agreement of guaranty.

The subject of the fourth assignment is a quotation by the court from the contract and a statement of the defendant’s claim with reference thereto. It does not contain any erroneous statement of a legal principle, nor a misstatement of the evidence.

The fifth assignment covers a part of the charge which is pertinent to the very question which the appellant says is involved in the case. The action was founded on the allegation that there was a breach of the contract with subsequent damages. Mr. Boyer for the plaintiff had testified as to the contract under which the dryer was bought and the guaranty. The court very properly instructed the jury that if there was not such an agreement the defendant was entitled to a verdict. The appellant now contends that even if there was not such an agreement there might be an abatement in the price and, therefore, a defense against the payment of the note in the other action. But there is no allegation of deceit; the apparatus was bought after an inspection of a similar plant, and the only objection raised by the plaintiff was that it was not as productive as they wanted and expected it to be. It did, however, dry from 15,000 to 16.000 brick a day and we do not find anything in the case that would justify the conclusion that it is not what it was sold for, to wit: a brick dryer capable of drying bricks. There is no room for the position now taken by the appellant that even in the absence of a guaranty of effectiveness they might defend against the payment of the price.

The sixth assignment is without merit. It is too plain for discussion that if the failure to properly do the work undertaken by the plaintiff was the cause of the inefficiency of the machine the defendant was not responsible for such failure. The plaintiff was to do certain work in the erection of the building and the machinery. If its part of the undertaking was not well done the defendant is not responsible for it. The court does not assume as is supposed that the dryer was to be constructed by the plaintiff, but the proper completion of the plaintiff’s share of the work was presumably essential to the successful operation of the plant, and the fact that the defendant’s representative was there to oversee the work does not alter the situation. There was evidence that it was erected in accordance with the plans furnished by the defendant, and testimony was offered on the other hand that Mr. Boyer had ideas of his own and built accordingly. If he did the defendant cannot be made liable for any failure in his designs.

That part of the charge embraced in the seventh assignment should be read in connection with that which immediately precedes it. The court called attention to the testimony of the plaintiff that the' dryer did not work well; that it would not dry 32.000 brick in the specified time. It was entirely proper for the court then to direct the attention of the jury to the evidence of the defense undertaking to account for the condition of things, and Mr. Mehaiffey, whose testimony was referred to by the court, apparently knew more about it than any of the other witnesses for the defendant for he was the man sent by that company to superintend the construction. When the plaintiff made out a .case of the failure of the machine it was appropriate for the defendant to account therefor, and the court properly directed the attention of the jury to that part of the evidence which presented the defendant's case on this subject

The eighth and ninth assignments are on the same subject and are properly connected with that part of the charge embraced in the seventh assignment. They called the attention of the jury to the defendant's explanation of the defective action of the dryer, but they did not have the effect, we think, to specially impress upon the jury the defendant’s view of the case.

The court had evident reference to the testimony of Mr. Mehaffey and Mr. Schaar in that portion of the charge set forth in the tenth assignment. It is true that Mr. Schaar did not say that Mr. Boyer said he had ideas of his own, but said that Mr. Boyer had ideas of his own. The distinction is not material in that connection and the plaintiff was in no way prejudiced.

We cannot agree with the appellant’s counsel that in the portions of the charge embraced in the eleventh and twelfth assignments the court assumed that the duty of the defendant was performed by furnishing parts of the dryer. He quoted a portion of the written contract, and said: “If they only contracted to sell parts we can come back to the question,” etc. It was the contention of the defendant that it was only to furnish certain parts of the drying apparatus; that the plaintiff was to furnish the other parts; that their original proposition was to furnish a drying plant for $6,000 and that they were willing to guarantee it to be efficient, but that the plaintiff concluded to do a large part of the work itself thereby reducing the price of the portion to be furnished by the defendant from $6,000 to $2,100. The court very properly took notice of that aspect of the case in discussing the question of a guaranty by the defendant.

The thirteenth assignment criticises the court for not having given the plaintiff's explanation of the reason why no complaint was made until in July after the machine was put in operation, but that evidence did not change the time when the complaint was actually made, and the court adverted to that date in connection with the conduct of the company in subsequently giving a note to the-defendant for the balance due on the contract and at a still later date making a payment of $500 thereon. The jury had the plaintiff’s explanation, and we think it would not have helped its case to have introduced a consideration of it in connection with the comments of the court on the giving of the note and the subsequent payment thereon.

The fourteenth and sixteenth assignments bear on the same subject. It was legitimate for the jury to take notice of the plaintiff’s conduct in giving the note and making the payment thereon after it had ascertained that the dryer was not working according to the alleged guaranty, with a view to determining the good faith of the claim set up, and the court might with propriety present that matter for their consideration.

That part of the charge contained in the fifteenth assignment is based on the issue apparently made up that the defendant was bound to respond to the plaintiff in damages because of a breach of guaranty. That, as we understand from the statement of the question involved, was the issue in the case, and the defendant’s liability would be contingent on the failure to perform according to the guaranty.

As we understand the argument of the counsel for the appellant the answers to the points assigned for error in the seventeenth and eighteenth assignments are admitted to be correct. The complaint seems to be that the court should have added something thereto, but it was not the duty of the court to enter into a discussion of the subject presented in the points. If any explanation or elaboration of the answer was desired by the plaintiff the attention of the court should have been called to it. Assignments of error to the effect that the court below did not specifically charge as to certain matters will not be considered where no request for such instructions on such matters is made: Murtland v. English, 214 Pa. 325.

The nineteenth assignment that the charge as a whole presents the case to the jury in a manner less favorable than that to which the plaintiff was entitled does not seem to us to be sustained. The points of controversy as exhibited by the evidence and the charge of the court related to the allegation of a contract of guaranty and the question whether the plaintiff bought a brick dryer or merely parts of a dryer, and these questions were fully and we think not unfairly presented to the jury by the court. The charge occupies fourteen pages of the paper-book. It left to the jury very clearly and fairly the question whether the guaranty alleged by the plaintiff was made, and also the question whether under the contract the dryer company agreed to furnish a dryer taken as a whole or whether they merely contracted to furnish certain materials, the brick company to provide the others and to construct it according to the plans and specifications of the dryer company. A charge of a court alleged to be inadequate should be viewed on appeal with' reference to its general effect. If as a whole it is not calculated to mislead it is not erroneous. It is not difficult in a charge growing out of controverted allegations of fact to select some portion which, apart from its context, seems subject to objection, but it would be unjust to the trial judge and obstructive to the administration of justice to take strict account of a single period without reference to the other portions of the charge. There were no assignments of error to the admission of evidence, and we may assume, therefore, that the appellants introduced all the evidence which they considered relevant and that none was introduced on the other side which was incompetent. The facts were fully presented and the appellant failed to persuade us that the case was not well disposed of in the court below.

The judgment is affirmed.


author: Morrison, J.,

text:
    D’Olier Engineering Company v. Central Newspaper Union, Limited, Appellant.

      Affidavit of defense — Evasive affidavit — Practice, C. P. — Contract.
    In an action by one corporation against another for labor performed and materials furnished in performing certain electrical work and installing a motor, an affidavit of defense is insufficient to prevent judgment which is evasive and equivocal as to the extent to which the president of the defendant company directed the work and also as to the existence of an alleged guaranty, and as to who made the guaranty on behalf of the plaintiff.
    Argued Dec. 16, 1908.
    Appeal, No. 187, Oct. T., 1908, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1908, No. 1,439, making absolute rule for judgment for want of a sufficient affidavit of defense in case of D’Olier Engineering Company v. Central Newspaper Union, Limited.
    February 26, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a contract.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

      William MacLean, Jr., for appellant.

      G. H. Stein, with him W. B. Linn, for appellee.
   Opinion by

Morrison, J.,

In this action of assumpsit the plaintiff’s declaration claimed the sum of $929.38, with interest, for work and labor done and material furnished for the defendant company at its special request, by its president, J. G. Monihan; the said work being done and material furnished under the direction of the said Monihan. To the claim of the plaintiff fully and specifically set up in the declaration, the defendant filed an affidavit of defense and a rule being entered for judgment for want of a sufficient affidavit of defense, the defendant, subsequently, without leave of court, filed a supplemental affidavit of defense. The learned court below held the affidavits insufficient and granted judgment for the amount of the plaintiff’s claim. The assignments of error complain of this action of the court.

A careful examination of the affidavits of defense convinces us that they are evasive, equivocal and insufficient. A very material averment in the plaintiff’s declaration is that the plaintiff furnished efficient workmen who executed the work as requested by the defendant in a good and workmanlike manner and were at all times under the direct instruction of the said John G. Monihan, president of the defendant company. Another important item in the declaration is that the defendant is further indebted to the plaintiff in the sum of $385.88 for materials sold and delivered to the defendant company at the request of the said Monihan, president. The declaration also avers that all of the above work was done and materials supplied at the request of and under the instructions of the defendant as aforesaid; that the work was performed by competent workmen and done in a proper and workmanlike manner; that all the materials furnished were good and sufficient materials and that the prices charged for the work and materials are fair, reasonable and market prices in every instance. But no question is raised as to the sufficiency of the plaintiff’s declaration and we only make these references to it for the purpose of calling attention to some of the defects in the affidavits of defense.

In his statement of the questions involved, the learned counsel for appellant states that the plaintiff expressly agreed to instal the motor so that it would successfully operate certain machinery; that the motor was improperly installed and would not operate the machinery in question, whereupon the plaintiff changed the location of it, when it then did operate the machinery successfully, and that defendant claims as a deduction from the amount claimed by plaintiff the amount of labor consumed in changing the location of the motor; and that the plaintiff agreed to supply the materials required for the work at cost, but that the prices charged by the plaintiff were in excess of cost, for which excess a deduction is claimed by defendant. Now turning to the affidavit of defense, made by John G. Monihan, where an attempt is made to deny that the work was done and the material located under the direction of the defendant, we find the following: “He further avers that the workmen and engineer sent by the said plaintiff to perform the work in question were under the direction of the said plaintiff and were not under the direction of the said defendant. The said defendant, while indicating his desires to the workmen and engineer furnished by the said plaintiff, did not attempt to interfere with their judgment in the performance of the work.” This we consider evasive and equivocal. Of course, the workmen and engineer were sent under the direction of the plaintiff to do the work, but, in our opinion, considering the specific averment in the declaration, and the guarded language in the affidavit of defense on this point, the inference is irresistible that the machinery was erected according to the desires or instruction of Monihan. We do not think the affidavits sufficiently aver an original agreement on the part of the plaintiff guaranteeing the result of the performance of the work, nor is there sufficient in the affidavits to show that if the plaintiff placed the motor where the defendant “desired” it to be placed, the plaintiff should not be paid, even if the motor did not thereafter perform the work expected of it by the appellant.

If the statement of the question involved means to set up a guaranty, the affidavits fail to sustain it. Who made such an agreement on behalf of the plaintiff, and by what authority was it made? The mere statement of a guaranty and nothing more is insufficient. “The affidavit should disclose whether it was expressed or implied, set forth its terms and state when and by whom and by what authority it was made:” Genesee Paper Co. v. Bogert, 23 Pa. Superior Ct. 23. Referring to the material furnished, the first affidavit contains the following: “Deponent further avers that the failure of the plaintiff to have the plant in operation on Monday, May 11, as was agreed to by the plaintiff, has caused him considerable loss of time and has' created considerable dissatisfaction with his customers.” This averment is insufficient. The affidavit does not allege sufficiently an agreement on the part of any one authorized to bind the plaintiff corporation to have the plant in operation on May 11, nor does it liquidate any damages caused by the failure to do this. The next paragraph in the affidavit relative to furnishing the material at cost is wholly insufficient. The defendant evidently realized this and undertook to correct it in the supplemental affidavit. But we regard the statement therein on this question little, if any, better than that contained in the first affidavit. What is meant by “ at cost ” ? Cost to whom ? Costs when and where? The reference to estimates procured by the deponent in the supplemental affidavit is insufficient and uncertain. The affidavit is fatally defective in respect of the allegation of the agreement that the material should be furnished at cost. It reads thus: “that at the time of giving the order it was verbally agreed between the plaintiff and deponent on behalf of the defendant, that the materials furnished should be supplied by the plaintiff at cost.” This plaintiff is a corporation and it could not make an agreement except through some person or persons duly authorized. The affidavit ought to have stated who made this agreement for the plaintiff. If the fact had been stated, it might prove to be some one having no authority whatever.

Under the averments in the declaration the presumption of law is that the plaintiff would be entitled to the fair market price for the material furnished and the affidavits of defense signally fail to show that such price should be reduced to actual cost at some time or place not definitely stated. Considering the affidavit and supplemental affidavit together as one does not convince us that the learned court below erred in entering judgment in favor of the plaintiff for the amount of its claim.

The judgment is affirmed and the appeal dismissed at the costs of the appellant.