Cox v. Burdett

• Decision Date: 05 October 1903
• Docket Number: 70-1903
• Citation: 23 Pa.Super. 346
• Parties: Cox, Appellants, v. Burdett
• Court: Pennsylvania Superior Court

23 Pa.Super. 346

Cox, Appellants, v. Burdett

No. 70-1903

Superior Court of Pennsylvania

October 5, 1903

Argued May 12, 1903

Appeal by plaintiffs, from judgment of C.P. Mercer Co.-1900, No. 50 on verdict of defendants in case of W. H. Cox and J. D. Cox v. W. S. Burdett, John E. Burdett, Clarence Hayes and Frank L. Burdett.

Replevin for a portable sawmill. Before Miller, P. J.

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

Verdict and judgment for defendants for $ 348.50. Plaintiffs appealed.

Errors assigned were various rulings on evidence referred to in the opinion of the Superior Court; various instructions, among them refusal of binding instructions for plaintiff.

Judgment modified and affirmed.

J Norman Martin, with him W. J. Whieldon, for appellants. -- The contract was a bailment, and as defendants never complied with the conditions of the contract, under which alone they could have acquired title, the matter remained throughout as it began, a bailment: Edwards's Appeal, 105 Pa. 103; Enlow v. Klein, 79 Pa. 488.

In replevin no set-off is allowable, either under the English statutes or our own more ancient act of assembly: Fairman v. Fluck, 5 Watts, 516; Peterson v. Haight, 3 Wh. 150; Phillips v. Monges, 4 Wh. 228.

There had been no execution of the contract for sale, the rental had not been paid, and the title remained in the bailors: Potter v. Stetson & Co., 11 Pa.Super. 627.

Defendant did not allege fraud, accident or mistake as a reason for reading the writing below the signatures into the contract. A mistake of law could not help them, and writing a memorandum below the signatures was of no more avail on the contract than an indorsement on a deed could be on the question of title.

Q. A. Gordon, with him J. G. White, for appellees. -- The question as to whether a contract is in writing or in parol, as far as determining whether it is to be construed by the court or the jury, depends not upon its being signed by the contracting parties, but upon whether it had been reduced to writing or is simply verbal: French Creek Twp. v. Moore, 165 Pa. 229.

If there is any reason why the amount of the damages found by the jury cannot be sustained this court probably has power to correct the verdict in this particular without a general reversal of the judgment: Easton v. Worthington, 5 S. & R. 130. If this court has any power to review the action of the court below on the matter of entering judgment on the verdict, it can make any order that the court below might lawfully have made.

Before Rice, P. J., Beaver, Orlady, Smith, W. D. Porter, Morrison and Henderson, JJ.

OPINION

BEAVER, J.

Replevin was brought in the court below to enforce a contract of bailment in writing, under which the plaintiffs leased to the defendants a portable sawmill and fixtures which were to be delivered to the defendants as their own property, upon the payment of the sum of $ 900 as in the said agreement provided. It is not denied by the defendants that the original contract was a bailment. They allege, however, that part of the contract was an agreement on the part of the plaintiffs to " furnish sufficient timber to keep the mill in constant operation and . . . . not to permit the mill to remain idle for more than twenty days at a time," and that this was written at the time the original agreement was made, before signing, and assented to by all the parties, but that the signatures were placed above this part of the agreement, because the place for the signatures had been arranged before it was added. The defendants also allege that subsequently, after default in furnishing timber for the mill, in accordance with this contract, they had an interview with one of the plaintiffs, in which, after visiting the scrivener and examining the contract, he admitted that he had violated the terms of the agreement and told them to take the mill and do the best they could with it. There was a difference in the recollection of the witnesses as to what passed in the conversation between them after the examination of the agreement. The difference between them was radical and could only be determined by a jury in passing upon the credibility of the parties respectively.

Two questions of fact, therefore, were very prominent in the case. Was the addition or supplement, made as alleged by the defendants at the time the original was executed, a part of the agreement? and, if so, was the abrogation of the agreement, in the subsequent arrangement between the parties, actually made, as claimed by the defendants? These facts were fairly submitted to the jury and, both of them having been found in favor of the defendants, it is easy to dispose of all of the assignments of error.

The plaintiffs misconceive the object of the defendants in offering the written addition to the agreement. It was not an offer to contradict or change in any way a written agreement by parol. It was simply an effort to prove that the addition was part of the original agreement and, notwithstanding the fact that the signatures were above it, that it was as much a part of the agreement as though it was above the signatures. It did not, therefore, come under the rule which prevails in an effort to change or modify a written agreement by parol, except, perhaps, as to the quantity and quality of the proof required to establish the fact of the addition. Neither fraud nor accident was alleged but, if the defendants were to be believed, there was a mistake in having the signatures put above the addition instead of below it, a mistake into which the scrivener fell and in which all the parties to the agreement joined by his direction. There was no error on the part of the court in admitting the testimony relating to this part of the written agreement or in the instructions as to the questions which grew out of it. In view of this part of the contract, it was entirely competent for the defendants to show that it had not been complied with and that, in consequence of the non-compliance of the plaintiffs, the subsequent arrangement, by which the mill was delivered to them, was made.

The letter, the admission of which is complained of in the fourth assignment of error, was admissible, if for no other purpose, as tending to show that the defendants' contention in regard to the arrangement by which the mill had been turned over to them, as their own property, by the plaintiff, was true, inasmuch as in that letter it is spoken of as " your mill."

We think, therefore, that the testimony,...