APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 144 July Term 1890, Sup. Ct.; court below, No. 484 December Term 1888, C. P. No. 4.

On February 2, 1889, Samuel Beswick and Edward Kay, trading as Beswick & Kay, brought trespass against George C. Platt, afterwards (perhaps) amended by the statement of claim to assumpsit. Issue.

At the trial on May 19, 1890, it was shown, in substance, that in December 1887, after some negotiations, the plaintiffs entered into a written contract with the defendant by which the latter was to construct for the plaintiffs an extension of their wharf or landing on the Schuylkill river; that when the contract, in the shape of proposals by the contractor, was presented for execution, specifications for the work being embraced therein, the defendant refused to execute it, unless the words, “ provided the same is used for landing purposes only,” were inserted at the end of the following sentence: “ I also guarantee that the said work will be in good condition at the expiration of one year after the same is built as above, provided the same is used for landing purposes only; ” that, thereupon, the clause was inserted and the contract executed with the provision in it as quoted, and with the further provision: “ It is agreed that immediately after the work shall be fully completed and delivered in a satisfactory manner, said George C. Platt shall forthwith receive his money.” It was also made to appear that, during the progress of the work, some slight modifications were made in the plans, with the consent, however, of the plaintiffs, and sometimes by their direction; that when the structure was completed, it was delivered tq the plaintiffs who paid to the defendant the contract price, to wit, $3,14.6,25, and that in a few months thereafter the wharf fell and went into the river. The plaintiffs claimed, from the evidence, that the wharf was unskilfully and negligently constructed; in reply, the defendant claimed, from the evidence, that the work was done in a skilful and workmanlike manner and according to the specifications as modified by the plaintiffs themselves, who observed and approved of the work as it was being done, and that the structure fell by reason of the fact that it was being used, not for landing purposes only, but for the storage of large quantities of sand.

At the close of the testimony, the court, Willson, J., charged the jury in part as follows:

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