Armstrong v. Standard Ice Co.

Decision Date17 November 1937
Docket Number116-1937
PartiesArmstrong v. Standard Ice Co., Appellant
CourtPennsylvania Superior Court

Argued October 1, 1937

Appeal from judgment of C. P. No. 4, Phila. Co., Sept. T., 1936, No 730, in case of Leo Armstrong v. Standard Ice Company.

Assumpsit upon written agreement. Before Millar, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff. Defendant appealed.

Error assigned, among others, was refusal of judgment n. o. v.

Judgment reversed and entered for defendant.

Robert B. Ely, with him Buckman & Buckman, for appellant.

Samuel M. Brodsky, with him Elwood S. Levy, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Parker, J.

The plaintiff has the verdict of a jury on which judgment was entered in an action in assumpsit brought to recover a balance claimed to be due from the defendant for wages under a written agreement for his employment. The defendant complains of the refusal of its motions for binding instructions and for judgment n. o. v. We are required on this appeal to determine whether under the circumstances it was the duty of the court to construe the contract, and if it was, then to interpret the writing.

Leo Armstrong and others sold to the defendant an ice plant and on April 2, 1931 plaintiff and defendant entered into a written contract for the employment of plaintiff for a period of one year from the date of the writing at a fixed weekly salary with the provision "that unless this contract shall be terminated by five (5) days written notice prior to the expiration thereof, the same shall be renewed, subject to all of its terms and conditions, for a further period of one (1) year and so on from year to year until either party gives to the other five (5) days written notice of its or his intention to terminate the same."

The plaintiff was in the employ of defendant until September, 1932 at the wages fixed at the time the contract was made when the compensation was reduced by mutual agreement from $ 65 to $ 55 per week. In April, 1934 there was a further reduction to $ 49.50 a week. On June 28, 1935 the defendant discharged plaintiff and paid him by check five days' future wages, which payment Armstrong accepted by cashing the check.

The defendant relied upon the fourth paragraph of the contract for its right to so discharge the plaintiff. The wording of this paragraph of the contract gave rise to the dispute between the parties and is as follows: "4. The said Employe further covenants and agrees that he will not leave the employ of the Ice Company prior to the expiration of the term hereinbefore mentioned, or any extension thereof, without first giving five (5) days written notice and the said Ice Company, if it desires to end said employment prior to the expiration of this agreement, or any extension thereof, without notice, upon payment of five days' wages." This was followed by the further stipulation "that nothing herein contained shall be construed to prevent the discharge, without previous notice or payment of five (5) days' wages, of said Employe when and if the said Employe be improperly or unfaithfully performing his duties." The employee also agreed that during his employment by the Ice Company and for a period of two years after he should cease to be an employee he would not "engage in any manner whatsoever in the ice business" within a radius of five miles from the Premier plant of the Ice Company.

The defendant contends that the contract was terminable at any time on the part of the plaintiff by giving five days' written notice and upon the part of the defendant without notice upon payment of five days' wages. The position of the plaintiff is that paragraph four is so "vague, inconsistent and ambiguous" that it does "not constitute a complete expression of the intent of the parties" and that it was therefore proper "for the trial court to submit its construction to the jury in the light of all the circumstances of the case."

Defendant in support of its position refers to two circumstances. Plaintiff testified that he read the contract before he signed it and was aware of its provisions. The record further shows: "Q. You are particularly aware of the provision in paragraph 4 that the Ice Company may, if it desires, prior to the expiration, terminate it, without notice, upon the payment of five days' wages? . . . . Q. You were aware of that when you signed it? A. That was agreeable both ways, five days in writing, with either one of us, if anything should happen that we didn't want each other's services, and that is what I understood both ways.". It was also admitted by the plaintiff that he received and accepted a check for five days' pay for that period after he ceased to work for defendant and that he cashed the check after consultation with his attorney.

We think it clear that the writing was not ambiguous, that it was for the court to interpret, and that the relevant circumstances confirm our construction. It is a fundamental rule of law that where a contract is not ambiguous, the construction of the contract is for the court: Neale v. Dempster, 184 Pa. 482, 39 A. 289; 13 C. J. 783. It is also true that where a contract is ambiguous and parol evidence is introduced in aid of its interpretation, the question of its meaning should be left to the jury: McCullough v. Wainright, 14 Pa. 171; National Dredging Co. v. Mundy, 155 Pa. 233, 26 A. 386. Here, however, the relevant parol evidence comes from the mouth of the plaintiff and is not in dispute. It follows that the interpretation was for the court.

We find no uncertainty in the fourth paragraph of the contract. "The court will if possible give effect to all parts of the...

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18 cases
  • Darlington v. General Elec.
    • United States
    • Pennsylvania Superior Court
    • 31 Enero 1986
    ...of a contract, as shown by their acts and declarations, "will ordinarily be adopted by the court." Armstrong v. Standard Ice Co., 129 Pa.Super. 207, 195 A. 171 (1937). In the instant case, however, General Electric's request of appellant to provide explanations may be readily accounted for ......
  • Moore v. Moore
    • United States
    • Pennsylvania Supreme Court
    • 29 Enero 1942
    ...inserted. Oleon v. S. Rosembloom & Co., 247 Pa. 250, 93 A. 473, L.R.A. 1915F, 968, Ann. Cas. 1916B, 233; Armstrong v. Standard Ice Co., 129 Pa. Super. 207, 195 A. If the words remain just as written, respondent can maintain no valid claim to anything beyond the $10,000 from the real estate ......
  • Moore v. Moore
    • United States
    • Pennsylvania Supreme Court
    • 29 Enero 1942
    ... ... word may be inserted: Oleon v. Rosenbloom & Co., 247 ... Pa. 250, 93 A. 473; Armstrong v. Standard Ice Co., ... 129 Pa.Super. 207, 195 A. 171 ... If the ... words remain just as written, respondent can maintain no ... ...
  • Martin v. Capital Cities Media, Inc.
    • United States
    • Pennsylvania Superior Court
    • 12 Junio 1986
    ...of a contract, as shown by their acts and declarations, "will ordinarily be adopted by the court." Armstrong v. Standard Ice Co., 129 Pa.Super. 207, 195 A. 171 (1937). In the instant case, however, General Electric's request of appellant to provide explanations may be readily accounted for ......
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