
    F. D. CUMMER & SON CO. v. FINDLEY.
    No. 9165.
    District Court, W. D. Pennsylvania.
    May 11, 1939.
    
      Reed, Smith, Shaw & McClay, and Elder W. Marshall, all of Pittsburgh, Pa., for plaintiff.
    Clarence B. Nixon, of Pittsburgh, Pa., for defendant.
   GIBSON, District Judge.

The defendant has moved for a new trial. The suit was to recover the purchase price of a road-building machine for which defendant, through his agent, had given a written purchase order. The principal defense pleaded was that the parties had a contemporaneous oral agreement that the purchase was to be effective only if defendant secured a certain road-making job, which job had not been procured. Upon trial the oral testimony was excluded.

The written order was absolute. The oral agreement in effect' destroyed the written contract. Under such circumstance, the exclusion of the oral agreement was not erroneous.

It was also alleged that the court was in error in holding that the testimony disclosed that the agent of the defendant had authority to sign the- written order for the machine. The testimony of the defendant, himself, as well as that of the agent, makes it plain that such authority existed..

It was also alleged that the court erred in instructing the jury that unless they found that the merchandise in question could have been resold for the contract price their verdict must be for the plaintiff. This reason for a new trial is based upon a mistake as to the court’s charge.

The motion for a new trial will be denied.  