Fry v. National Glass Co.

• Decision Date: 04 January 1904
• Docket Number: 70
• Citation: Fry v. National Glass Co., 207 Pa. 505, 56 A. 1063 (Pa. 1904)
• Parties: Fry v. National Glass Company, Appellant
• Court: Pennsylvania Supreme Court

56 A. 1063

207 Pa. 505

Fry v. National Glass Company, Appellant

No. 70

Supreme Court of Pennsylvania

January 4, 1904

Argued October 29, 1903

Appeal, No. 70, Oct. T., 1903, by defendant, from judgment of C.P. No. 1, Allegheny Co., Sept. T., 1901, No. 95, on verdict for plaintiff in case of George W. Fry v. National Glass Company. Reversed.

Assumpsit on a written contract. Before BROWN, J.

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

The defendant presented, inter alia, the following point:

1. The evidence on the part of the plaintiff in this case is insufficient to affect the written contract upon which the plaintiff brought his original action, and that contract will accordingly be considered by the jury as the final and only contract between the parties relative to the sale of the Uniontown plant of the George W. Fry Company to the National Glass Company. Answer: Refused.

Verdict and judgment for plaintiff for $5,000. Defendant appealed.

Error assigned among others was above instruction.

Judgment reversed with a venire de novo.

Thomas Patterson, of Patterson, Sterrett & Acheson, for appellant. -- Parol evidence was insufficient to submit to the jury Duffield v. Hue, 129 Pa. 94; Cochran v. Pew, 159 Pa. 184; Baugh v. White, 161 Pa. 632; Martin v. Bernes, 67 Pa. 459; Baer's App., 127 Pa. 360; Bowman v. Tagg, 19 W.N.C. 147; Yeager v. Yeager, 20 W.N.C. 384; Stull v. Thompson, 154 Pa. 43; Krueger v. Nicola, 205 Pa. 38.

Warren I. Seymour, with him H. H. Patterson, E. W. Arthur, Clarence Burleigh and James C. Gray, for appellee. -- The law of Pennsylvania now is, and always has been, that parol evidence of a contemporaneous promise or agreement, made for the purpose of inducing and which did induce the execution of a written contract is admissible, although it contradict or vary the terms of a written contract: Campbell v. McClenachan, 6 S. & R. 171; Miller v. Henderson, 10 S. & R. 290; Levy v. Moore, 1 Phila. 325; Shughart v. Moore, 78 Pa. 469; Lippincott v. Whitman, 83 Pa. 244; Phillips v. Meily, 106 Pa. 536; Bown v. Morange, 108 Pa. 69; Thomas v. Loose, 114 Pa. 35; Cullmans v. Lindsay, 114 Pa. 166; Honesdale Glass Co. v. Storms, 125 Pa. 268; Ferguson v. Rafferty, 128 Pa. 337; Sidney School Furniture Co. v. Warsaw School District, 130 Pa. 76; Com. v. Julius, 173 Pa. 322; Smith v. Harvey, 4 Pa. Superior Ct. 377; American Harrow Co. v. Swoope, 16 Pa.Super. 451; McCormick Harvesting Machine Co. v. Nicholson, 17 Pa.Super. 188; Sutch's Est., 201 Pa. 305.

Before DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE BROWN:

In the spring of 1900, George W. Fry, the appellee, was the owner of a glass plant situated at Uniontown, this state. He was about to turn it into a corporation to be known as the George W. Fry Company, and entered into negotiations with J. V. Thompson and others, who were drilling for gas in the vicinity, which resulted in an arrangement that if they found gas in sufficient quantity, they would supply the factory of the proposed corporation with it at the rate of two and one half cents per thousand cubic feet for the first year and three cents per thousand cubic feet for the second year. Before the incorporation of the company Fry entered into a contract with the appellant for the sale of his plant to it in consideration of its issuing to him 1,000 shares of its capital stock. The present controversy arises from the following clause: "Said party of the first part agrees to have executed and delivered to the party of the second part a certain gas contract with the Uniontown Gas Company to supply above described works with gas for a period of two years from the time of turning gas into meter for use in said factory at the following rate: For the first year two and one half cents per one thousand cubic feet, and for the second year at the rate of three cents per one thousand cubic feet."

The appellant issued to the appellee 800 of the 1,000 shares, and retained the remaining 200 as security for his fulfillment of his agreement to have the gas contract executed and delivered to it. The Uniontown Gas Company was not formed, but substantially the same parties that had proposed to organize it became incorporated under the name of the Menallen Gas Company, and, on March 30, 1901, they entered into a contract with the George W. Fry Company to supply it with gas at the rate of two and one half cents per thousand cubic feet for the first year and three cents per thousand cubic feet for the second year. On April 29, 1901, Fry tendered this contract to the appellant, but the same was refused, because the glass company, according to its testimony, had been notified by the officers of the gas company that they would not furnish it gas under the contract with the George W. Fry Company. In referring to this contract the learned trial judge correctly instructed the jury that "if there were no parol modification of the gas section in the written contract between the plaintiff and the defendant, the defendant was not bound to accept it, nor an assignment of it, for it was entitled to a full delivery, clear of prospective litigation, and of difficulties arising, or likely to arise, upon the refusal and notice of refusal of the gas company to deliver gas under it." Upon the refusal of the company to accept an assignment of this contract from Fry, he brought the present suit for the value of the 200 shares retained, and a verdict was rendered in his favor, the court having submitted to the jury the question of a parol modification of the written contract before it was executed, which had induced the plaintiff to sign it.

If there had been a parol agreement between the parties before and at the time of the execution of the written one, which was omitted from it by fraud, accident or mistake, and such omission resulted in damage to the plaintiff, or if there had been an oral cotemporaneous promise not inserted in the writing, which was the inducement to the appellant to sign it, and the appellee had afterwards attempted to make an improper use of it, the plaintiff's case would have been for the jury, provided his allegations and proofs were such as the law requires. But the case presents neither of these features, and, far as we have sometimes gone in allowing solemn written compacts to be explained away by oral testimony, what is asked for here exceeds the limit.

Turning to the averment in plaintiff's statement why he should not have executed and delivered to the appellant a gas contract with the Uniontown Gas Company, in accordance with his agreement, we find it to be simply that Myron L. Case the officer of the company who drew it up, represented "to plaintiff that the clause aforesaid merely meant that if plaintiff did secure a gas contract, he would deliver the same to the defendant company without any additional compensation or charge therefor. Henry C. Fry, president of defendant company, subsequently assented to and ratified these representations and with this distinct and express...