Opinion by
Beaver, J.,
The action here is assumpsit; the pleas non assumpsit, set-off, etc. Under the plea of set-off, the defendants claimed to recover back $282 advanced on account of the construction of the machine, the contract price of which was the basis of the claim for recovery. As the case was disposed of in the court below, this part of it seems to have been lost sight of and is not now specially important. As the case goes back for a retrial, however, it may be well to keep it in mind, inasmuch as it may be important, if the jury should find the facts as contended for by the defendants. The claim of the plaintiff below was based upon a contract in the form of a letter written by the defendants, dated Philadelphia, January 15, 1894, addressed to the plaintiffs. Thirteen machines and one “ lead lap ” are specified but, inasmuch as all of them have been delivered and paid for, except one, it constitutes the subject-matter of the contract, so far as our inquiry in regard to the same is concerned. It is described in the letter as “ 1 Rolling Machine Complete 8-18 in.” The consideration for all the machinery ordered was the net sum of $3,000. “ All machinery to be built according to our (defendants’) instructions and to be guaranteed in first class worldng [536]*536order.” The allegation of the plaintiffs is that the contract was fully complied with in every particular and this suit is an effort to recover the balance of $3,000 unpaid and $73.00 for extra work done by plaintiffs in and about the machinery specified in the contract. The plaintiffs’ statement and the defendants’ affidavit of defense are not printed in the paper-books of either party. It would have been much more satisfactory to us, if they had been. As to the essential facts for our consideration however, there is little dispute and we have no difficulty in reaching a conclusion in regard to them.
The errors complained of are contained in twelve distinct assignments. As to the third, ninth and tenth, nothing is said by the appellant in his argument and we see nothing seriously erroneous in what is therein set forth. These assignments are, therefore, overruled.
The fundamental error in the case, out of which grew a number of those complained of by the appellants, was the manner in which the trial judge in his charge limited the jury to the consideration of the written evidence, as contained in the letter of defendants to plaintiffs of January 15,1894. His language in regard to the same is as follows: “ The parties are bound by their written expression of what they agreed to do, as in this case the contract between the parties was in an order which was given by the defendant to the plaintiff. In that order the defendants specifically declared that (?) they wanted the plaintiff to do; what they required him to do; and, as he accepted the order and endeavored to fill it, that order is the law in this case. It is binding upon both parties alike and nothing outside of that order should be considered by the jury.” The order, as already stated, is for 1 Rolling Machine Complete 8-18 in. For what was this rolling machine intended? Was it to roll lead, copper, iron or steel? Was it intended for rolling sheets or bars ? Was its product to be flat, square or round? What do the figures 8-18 in. mean ? Have they any reference to the size or character of the product of the machine ? It is evident that, in order to determine the character of the machine, its weight, the strength of its parts, the details of its construction and whether or not the machine as finally furnished and operated was the machine ordered by the plaintiffs, it is necessary for us to secure information outside tins letter or agreement. That information [537]*537can easily be supplied from the conversations between the plaintiffs and the defendants which preceded the order referred to and which are absolutely essential to an understanding of the order for the machine which constitutes the agreement in this case. There was no effort, as we understand it, on the part of the defendants to contradict in any way this contract. What they offer to show and what is shown conclusively by the evidence was that this was a rolling machine intended to roll blanks for steel files. That these blanks were to be from eight to eighteen inches in length and to vary in width and thickness according to the requirements of the several lengths respectively.
These explanations, although contained in and easily inferred from the testimony of the plaintiffs themselves, were not allowed to be considered by the jury in determining the one essential element of the case, namely, whether the plaintiffs had complied with their agreement with the defendants in relation to the rolling machine and were, therefore, entitled to recover. Upon-what principle this evidence was excluded from the consideration of the jury it is difficult to tell. The rule in England, clearly established in Sweet v. Lee, 3 M. & G. 450 (42 E. C. L. 240) that “ Where an agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms,” has been followed in our own state and to some extent enlarged. The opinion of Mr. Justice Woodward (G. W.) in Barnhart v. Riddle, 29 Pa. 92, clearly sets forth the distinction between the parol evidence which tends to contradict or vary the terms of a written agreement and that which simply explains its subject-matter. He says : “ But evidence to explain the subject-matter of an agreement is essentially different from that which varies the terms in which the contract is conceived. It is the dictate of common sense and, therefore, a rule of law that every written instrument is to be interpreted according to the subject-matter 'and yet the nature and qualities of the subject-matter are seldom fully stated, even when alluded to in the writing.” In the present case the subject-matter is merely alluded to. It is necessary, in order to make the contract intelligible, ¿to introduce parol testimony as to the character of the machine, the object for which it was intended, the work to be done by [538]*538it, the different sizes of file blanks to be rolled by it and numerous other questions concerning which the written agreement itself was entirely silent and yet as to none of which is there the slightest contradiction between the parol testimony actually in the case which furnishes this information and the written agreement: Gould v. Lee, 55 Pa. 99; Centenary M. E. Church v. Kline, 116 Pa. 146; McDonough v. Jolly, 165 Pa. 542; Wright v. Gas Co., 2 Pa. Superior Ct. 219; Nye v. Pittsburg Co., 2 Pa. Superior Ct. 384. The ruling of the trial judge in the court below upon this subject practically shut out the essentials of the defense of the appellant and left the jury groping entirely in the dark as to the plaintiff’s compliance with the contract upon which he sought to recover. The second assignment of error is, therefore, sustained.
The sixth assignment must also be sustained. The error complained of there logically grows out of his construction of the contract by the trial judge in the court below. He says: “ There is no requirement, first of all, that it (the machine) shall turn out the material fourteen or sixteen or eighteen inches.
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Opinion by
Beaver, J.,
The action here is assumpsit; the pleas non assumpsit, set-off, etc. Under the plea of set-off, the defendants claimed to recover back $282 advanced on account of the construction of the machine, the contract price of which was the basis of the claim for recovery. As the case was disposed of in the court below, this part of it seems to have been lost sight of and is not now specially important. As the case goes back for a retrial, however, it may be well to keep it in mind, inasmuch as it may be important, if the jury should find the facts as contended for by the defendants. The claim of the plaintiff below was based upon a contract in the form of a letter written by the defendants, dated Philadelphia, January 15, 1894, addressed to the plaintiffs. Thirteen machines and one “ lead lap ” are specified but, inasmuch as all of them have been delivered and paid for, except one, it constitutes the subject-matter of the contract, so far as our inquiry in regard to the same is concerned. It is described in the letter as “ 1 Rolling Machine Complete 8-18 in.” The consideration for all the machinery ordered was the net sum of $3,000. “ All machinery to be built according to our (defendants’) instructions and to be guaranteed in first class worldng [536]*536order.” The allegation of the plaintiffs is that the contract was fully complied with in every particular and this suit is an effort to recover the balance of $3,000 unpaid and $73.00 for extra work done by plaintiffs in and about the machinery specified in the contract. The plaintiffs’ statement and the defendants’ affidavit of defense are not printed in the paper-books of either party. It would have been much more satisfactory to us, if they had been. As to the essential facts for our consideration however, there is little dispute and we have no difficulty in reaching a conclusion in regard to them.
The errors complained of are contained in twelve distinct assignments. As to the third, ninth and tenth, nothing is said by the appellant in his argument and we see nothing seriously erroneous in what is therein set forth. These assignments are, therefore, overruled.
The fundamental error in the case, out of which grew a number of those complained of by the appellants, was the manner in which the trial judge in his charge limited the jury to the consideration of the written evidence, as contained in the letter of defendants to plaintiffs of January 15,1894. His language in regard to the same is as follows: “ The parties are bound by their written expression of what they agreed to do, as in this case the contract between the parties was in an order which was given by the defendant to the plaintiff. In that order the defendants specifically declared that (?) they wanted the plaintiff to do; what they required him to do; and, as he accepted the order and endeavored to fill it, that order is the law in this case. It is binding upon both parties alike and nothing outside of that order should be considered by the jury.” The order, as already stated, is for 1 Rolling Machine Complete 8-18 in. For what was this rolling machine intended? Was it to roll lead, copper, iron or steel? Was it intended for rolling sheets or bars ? Was its product to be flat, square or round? What do the figures 8-18 in. mean ? Have they any reference to the size or character of the product of the machine ? It is evident that, in order to determine the character of the machine, its weight, the strength of its parts, the details of its construction and whether or not the machine as finally furnished and operated was the machine ordered by the plaintiffs, it is necessary for us to secure information outside tins letter or agreement. That information [537]*537can easily be supplied from the conversations between the plaintiffs and the defendants which preceded the order referred to and which are absolutely essential to an understanding of the order for the machine which constitutes the agreement in this case. There was no effort, as we understand it, on the part of the defendants to contradict in any way this contract. What they offer to show and what is shown conclusively by the evidence was that this was a rolling machine intended to roll blanks for steel files. That these blanks were to be from eight to eighteen inches in length and to vary in width and thickness according to the requirements of the several lengths respectively.
These explanations, although contained in and easily inferred from the testimony of the plaintiffs themselves, were not allowed to be considered by the jury in determining the one essential element of the case, namely, whether the plaintiffs had complied with their agreement with the defendants in relation to the rolling machine and were, therefore, entitled to recover. Upon-what principle this evidence was excluded from the consideration of the jury it is difficult to tell. The rule in England, clearly established in Sweet v. Lee, 3 M. & G. 450 (42 E. C. L. 240) that “ Where an agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms,” has been followed in our own state and to some extent enlarged. The opinion of Mr. Justice Woodward (G. W.) in Barnhart v. Riddle, 29 Pa. 92, clearly sets forth the distinction between the parol evidence which tends to contradict or vary the terms of a written agreement and that which simply explains its subject-matter. He says : “ But evidence to explain the subject-matter of an agreement is essentially different from that which varies the terms in which the contract is conceived. It is the dictate of common sense and, therefore, a rule of law that every written instrument is to be interpreted according to the subject-matter 'and yet the nature and qualities of the subject-matter are seldom fully stated, even when alluded to in the writing.” In the present case the subject-matter is merely alluded to. It is necessary, in order to make the contract intelligible, ¿to introduce parol testimony as to the character of the machine, the object for which it was intended, the work to be done by [538]*538it, the different sizes of file blanks to be rolled by it and numerous other questions concerning which the written agreement itself was entirely silent and yet as to none of which is there the slightest contradiction between the parol testimony actually in the case which furnishes this information and the written agreement: Gould v. Lee, 55 Pa. 99; Centenary M. E. Church v. Kline, 116 Pa. 146; McDonough v. Jolly, 165 Pa. 542; Wright v. Gas Co., 2 Pa. Superior Ct. 219; Nye v. Pittsburg Co., 2 Pa. Superior Ct. 384. The ruling of the trial judge in the court below upon this subject practically shut out the essentials of the defense of the appellant and left the jury groping entirely in the dark as to the plaintiff’s compliance with the contract upon which he sought to recover. The second assignment of error is, therefore, sustained.
The sixth assignment must also be sustained. The error complained of there logically grows out of his construction of the contract by the trial judge in the court below. He says: “ There is no requirement, first of all, that it (the machine) shall turn out the material fourteen or sixteen or eighteen inches. In fact, it says nothing about the length, size or condition of the work to be turned out,” and yet the order for the machine contains the figures 8-18 in., which, with the explanation contained in the testimony of the plaintiff, clearly shows that the object of the machine was to turn out steel file blanks from eight to eighteen inches in length.
The acceptance by the plaintiffs of the defendants’ order for the rolling machine therein referred to imposed upon them an obligation, in the absence of instructions by the defendants, to make the machine of such weight and of such materials as would enable it to do the work stipulated to be performed by it and this, independently of the warranty which is provided for in the order. The testimony in regard to the capacity of the machine for doing the work for which it was intended is somewhat contradictory. This was a question for the jury, under proper instructions. The trial judge, having eliminated from the case the parol testimony which explained the character of the rolling machine and the purpose for which it was intended, and having charged the jury that the defendants, having failed to give the plaintiffs instructions in regard to the construction of the machine, had “ no right to complain or say that they, the plaintiffs, had used material which was not as perfect [539]*539in its parts as it ought to be,” naturally fell into the error complained of in the seventh assignment of saying to the jury: “ All that was necessary for the plaintiff to do was to build the machine so that it would work as a machine, and you are to determine from the evidence whether, as a machine, it is all right.” This instruction left out of view entirely the duty of the plaintiffs to make a machine which would do the work for which it was intended, and practically declared that anything which would operate smoothly as a machine, in other words, that a machine whose related parts were so adjusted as to work harmoniously when in operation was a compliance with the contract. That this did not fairly express the view of the trial judge is apparent from what is contained in another part of the charge, to wit: “ If the machine, when it was delivered, did the work properly and did the work for which it was designed, then the contract of the plaintiff was completed and ended, and it matters not if afterwards the machine became imperfect and unable to do any work at all; ” but it is none the less erroneous and misleading. The latter quotation is not only a recognition of the fact that the machine must do its work as a machine but that it must perform the work for which it was designed, and that design can be ascertained only from the parol testimony which was excluded from the consideration of the jury. The clause in the defendants’ order, of January 15, 1894, accepted by the plaintiffs and regarded as the contract in this case, “to be guaranteed in first class working order,” must necessarily refer not only to the operation of the machine as such, but also to its ability to do the work for which it was intended in a proper way. It was evidently intended to be and was in effect a warranty of the machine itself. If the machine, when furnished, failed to do its work efficiently for any cause, the plaintiffs were bound to put it in proper condition for doing that work. If, upon repeated efforts, they failed to put it into such condition and finally abandoned it, so that the defendants were compelled to discard it entirely and purchase new machinery to do the work for which it was intended, the jury should have been told that, if the facts were so found by them, their verdict should be for the defendants: Wade v. Haycock, 25 Pa. 382. It follows, from what has been said, that the first, fifth, eighth and twelfth assignments of error must also be sustained.
Judgment reversed and a new venire awarded.