Argued
December 2, 1902
[Syllabus Matter]
[Syllabus Matter]
Appeal
by plaintiff, from judgment of C.P. Northampton Co.-1902, No
40, on verdict for plaintiff in case of Eastern Power Company
of Pennsylvania v. Sterlingworth Railway Company.
Assumpsit
for electric power sold and delivered. Before Schuyler, P. J.
The
facts are stated in the opinion of the Superior Court.
At the
trial the court admitted in evidence various declarations and
statements of the parties made prior to the execution of the
contract. This testimony was admitted on the theory that the
contract was partly in writing and partly in parol. As to
this evidence the court at the conclusion of the trial, and
apparently after the jury had retired, made the following
explanation:
[At the
outset of the trial objection was made to the competency of
some testimony offered for the purpose of proving that this
contract was partly in writing and partly in parol. I
overruled this objection and admitted evidence to be given of
a parol contract contemporaneous with the contract in
writing, without giving any reasons why I did so. The
objection made to the introduction of the testimony was that
there was no allegation that the written contract was made by
fraud, accident or mistake, and that, therefore, it was not
competent to introduce any evidence to alter or vary the
contract in the absence of proof of that kind. I stated at
the time, although it was not put on the record, that whilst
I recognized the force of the rule invoked by counsel for the
defendant, that I did not think that it had an application in
the present case, for the reason that after a careful
examination of the pleadings I had reached the conclusion
that it was admitted by the pleadings that this contract was
partly in writing and partly in parol, and that being partly
in writing and partly in parol that the rule invoked had no
application.]
[I wish
to put myself upon record as giving the reasons why I
consider that the pleadings admit the fact that the contract
was partly in writing and partly in parol, and I find it is
necessary and proper for me to do that, for this reason, that
the allegation in the statement that the contract was partly
in writing and partly in parol is denied in the answer, but
with a qualification; and, therefore, without giving some
reasons it would leave the impression that the question as to
whether the contract was in writing or in parol was an open
question. Let me read the first paragraph in the statement:
" First, on December 28, 1898, a contract between the
plaintiff and defendant was entered into for the furnishing
electric current by the former to the latter." The
answer to that allegation is denied. If that denial stood
alone it probably would meet with the requirements of our
court rules on the subject; but you follow that same language
that is introduced by the formula in this answer, which I
deem an exceedingly bad one: " On the contrary two
independent contracts were made December 28, 1898, one in
parol for electric lighting and one in writing for electric
power." Now, you deny that there was a contract for
electric power. In the same paragraph in which you deny it
you admit it. You admit there were two contracts, one for
electric power and one for electric lighting by parol. That
is in the same paragraph you deny that there was any contract
for electric power or a separate contract for electric power,
and admit there was a contract for electric power. I infer
from that that you attach some unexplained meaning to the
word deny -- that when you say deny you don't mean deny,
because here is an inconsistency.]
The
court charged in part as follows:
[It is
alleged in the plaintiff's statement that that contract
was partly in writing and partly in parol, that is, that it
was partly written and it was partly entered into by word of
mouth. Under our rule of court, unless that allegation is
specifically denied in the answer to the statement, it is to
be taken as admitted, and I now say to you, after examining
the answer in its entirety, that that allegation is not
specifically denied by the defendant, and, therefore, it is
to be treated as admitted, and I instruct you that this
contract with reference to furnishing electric power was
partly in writing and partly in parol. So far as the written
part of the contract is concerned it provides that the power
to be furnished should be furnished as required; and, by
implication, it would follow that it would be paid for in the
quantity that was required by the defendant. But the
allegation of the plaintiff is that that part of the contract
was changed by word of mouth, as follows: the allegation in
the statement is that that part of the contract was changed
by parol, as follows: It was agreed that the plaintiff should
supply two motors, and that after the motors were installed
the plaintiff would furnish and the defendant would receive
and pay for a current of seventy horse power.]
[If you
find that the contract was not changed by parol you will very
easily reach the conclusion that these credits would
overbalance the claim of the plaintiff, and the defendant
contends that that being so he is entitled to a certificate
in his favor for the difference. I say to you as a matter of
law that the defendant will not be entitled to any
certificate under the circumstances in this case. If you find
that the plaintiff has been paid in full, or if you find that
the plaintiff has been very much overpaid, in either event
your verdict will be a verdict in favor of the defendant
generally, not in favor of the defendant for any sum
whatever.]
Verdict
and judgment for plaintiff for $ 622.59. Defendant appealed.
Errors
assigned among others were rulings on evidence, quoting the
bill of exceptions; above explanations, quoting them; above
instructions, quoting them.
F. W.
Edgar, for appellant. -- The court below was not justified
upon any theory whatever in permitting the plaintiff to offer
parol evidence to contradict the terms of the written
contract: Coughenour v. Suhre, 71 Pa. 462;
Weisenberger v. Harmony Fire, etc., Ins. Co., 56 Pa.
442; Dixon-Woods Co. v. Phillips Glass Co., 169 Pa.
167; Dickson v. Hartman Mfg. Co., 179 Pa. 343;
Martin v. Berens, 67 Pa. 459.
The
Northampton county court rules treat the defendant's
" answer" as a formal pleading that will conclude
the defendant at the trial, and will operate as a special
plea restricting the scope of the general issue contrary to
the regulation of the procedure act: Boomer v.
Henry, 2 Pa. Dist. 357; Murdock v. Martin, 132
Pa. 86; Winkleblake v. Van Dyke, 161 Pa. 5;
Taylor v. Beatty, 202 Pa. 120; Flegal v.
Hoover, 156 Pa. 276; Easton Power Co. v.
Sterlingworth Ry. Supply Co., 7 North 366.
The
defendant had a right, under the terms of the written
contract, to rely upon the good faith of the plaintiff that
it would accurately measure the current and charge only for
the amount of horse power actually supplied. And as soon,
then, as the defendant discovered that it had been
overcharged, the defendant had a right to recover by way of
rebate or recoupment the excess paid: Guffey v.
Clever, 146 Pa. 548; Heastings v. McGee, 66 Pa.
384; Worley v. Moore, 97 Ind. 15; Hanson v.
Jones, 20 Mo.App. 595.
E. J.
Fox, with him J. W. Fox, for appellee. -- When matters of
facts, depending on oral testimony, are connected with and
necessary to a proper understanding of the written evidence,
the court is not bound to construe the latter as though it
stood alone. An admixture of oral and oral and written
evidence draws the whole to the jury: Wetherill Bros. v.
Erwin & Wagener Co., 12 Pa.Super. 259; Rearich v.
Swinehart, 11 Pa. 233.
Where
there is a dispute as to a conversation which took place
prior to the written contract, and the evidence of the
plaintiff contradicts that of the defendant, the question as
to what was the real contract is for the jury: Anderson
v. National Surety Co., 196 Pa. 288; Selig v
Rehfuss, 195 Pa. 200; Steel v. Loeb, 5
Pa.Super. 238; Ferguson v. Rafferty, 128 Pa. 337;
Sutch's Estate, 201 Pa. 305; American Harrow Co. v.
Swoope, 16 Pa.Super. 451; Clinch Valley Coal & Iron
Co. v. Willing, 180 Pa. 165; McCormick Harvesting,
etc., Co. v....
