
    Franklinville Canning Company v. Pittsburg Bakers & Confectioners’ Supply Company, Appellant.
    
      Contract — Evidence—Pleadings—Cancellation of contract.
    
    In an action on a contract, where the existence of the contract is admitted by the pleadings, the court cannot be convicted of error in refusing instructions to the effect that the evidence failed to show a completed contract between the parties prior to a named date when the defendant notified the plaintiff to cancel the order given. Where the evidence as to the cancellation is conflicting the case is for the jury.
    Argued April 22, 1912.
    Appeal, No. 131, April T., 1912, by defendant, from judgment of C. P. No. 4, Fourth Term, 1908, No. 589, on verdict, for plaintiff in case of Franklinville Canning Company v. Pittsburg Bakers & Confectioners' Supply Company.
    Before Rice, P. J., Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit for apples sold and delivered. Before SWEARINGER, P. J.
    Defense presented this'point:
    That the evidence in the case fails to show a completed contract between the plaintiff and defendant at any time prior to November 2, 1907, such as is claimed in this case, and that the defendant having on that date notified the plaintiff, in effect, not to send the apples sued for, the plaintiff cannot recover in this case, and, generally, that under all the evidence the verdict must be for the defendant. Answer: Refused.
    Verdict and judgment for plaintiff for $715.60. Defendant appealed.
    
      Errors assigned were refusal of point above, and refusal of motion for judgment for defendant n. o. v.
    
      John S. Ferguson, with him O. P. Robertson, for appellant.
    
      8. Leo Ruslander, with him A. Leo Weil, Charles M. Thorp and George E. Spring, for appellee..
    October 14, 1912:
   Opinion by

Orlady, J.,

The plaintiff is a New York and the defendant a Pennsylvania corporation. The claim is based on written offers’ and acceptances signed by the respective parties, the most important of which is dated September 14, 1907, approving the price per dozen for 400 cases of apples. This was a modification of an earlier writing for 800 cases. On the trial the plaintiff offered, pursuant to the rules of court, averments of the statement of claim which were not denied by the affidavit of defense, by which pleadings, the contract between the parties is fully and clearly set forth. The principal contention on the trial was that the defendant could not recover on account of its being a foreign corporation, not legally authorized to do business -in this state, which was decided against the defendant under the evidence adduced, and is not now pressed as error. Binding instructions were urged in a point submitted in which it was contended that the evidence fails to show a completed contract between the parties prior to a named date when the defendant notified the plaintiff to cancel the order given. This point was properly refused by the court, for the reason that existence of a contract was admitted by the pleadings, and whether or not it had been canceled was a question of fact for the jury, which was fairly submitted, and the verdict returned by the jury was fully warranted by the testimony.

The judgment is affirmed.  