
    MONARCH FUEL OIL COMPANY, RESPONDENT, v. ALPHONSE WALTI, APPELLANT.
    Argued May 4, 1937
    Decided June 3, 1937.
    
      Before Justices Lloyd, Case and Donges.
    For the appellant, John F. Ryan.
    
    For the respondent, Harry Gersten.
    
   Per Curiam.

The plaintiff obtained a judgment in the court below and defendant appeals.

The grounds urged for reversal are that the court erred in denying defendant’s motions for nonsuit and for the direction of a verdict in his favor.

The state of demand was in two counts, one on a book account, and the other for services and materials furnished. The case as presented rested on the proofs offered by the plaintiff, no evidence being produced by the defendant.

The motions for nonsuit and direction were based on the fact that the plaintiff had offered in evidence a contract for the installation of an Air-Scott-Ffewcomb Pioneer Oil Burner, but proved the installation of a Lenox burner instead. On this state of the proofs it was contended that the contract tendered was not carried out and nothing could be recovered.

The difficulty with this contention is that it overlooks the count for materials sold, the proofs in support of it, and defendant’s admissions. The plaintiff proved a substitution of the Lenox boiler for the one specified in the agreement, and that this substitution was made by agreement with the defendant upon which the latter had paid all but the sum of $368.30, which amount the defendant’s testimony might be construed as admitting to be due.

The production of the written contract did not debar the plaintiff from proving its subsequent verbal modification and the delivery of the boiler substituted for the one specified in the writing and recovering therefor under the second count.

The judgment is affirmed, with costs.  