Germantown Dairy Co. v. McCallum
| Decision Date | 01 March 1909 |
| Docket Number | 153 |
| Citation | 223 Pa. 554,72 A. 885 |
| Parties | Germantown Dairy Company v. McCallum, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 7, 1909
Appeal, No. 153, Jan. T., 1908, by defendant, from judgment of C.P. No. 5, Phila. Co., March T., 1904, No. 4,483, on verdict for plaintiff in case of Germantown Dairy Company v Irving McCallum. Affirmed.
Assumpsit to recover the purchase price of personal property. Before MARTIN, P.J.
The facts are stated in the opinion of the Supreme Court.
When the defendant was on the stand he was asked this question:
Objected to. Objections sustained. Exception for defendant. [3]
Defendant presented these points.
1. The plaintiff having admitted that it was registered as a foreign corporation at Harrisburgh, with its place of business designated as 109 Harvey street, Philadelphia, and the person in charge of the said business as John C. Nolan, and having admitted that John C. Nolan ceased to have any connection with the company about the first day of January, 1904, except as he still held the position of secretary and treasurer from which he had not resigned because there was no meeting of the board of directors, and having further admitted that he was in no way connected with the business and did not go to the place of business after January 1, 1904, and the contract in this case having been made by the plaintiff on January 16, 1904, it was made without authority of law, because the plaintiff had not at that time complied with the provisions of the act of assembly which requires foreign corporations to be registered at the office of the auditor general at Harrisburg, and had at that time no authorized agent in charge of its business in this state. Answer: Refused. [4]
2. If the jury believe that John C. Nolan, the person named in the certificate of registration of the Germantown Dairy Company as the agent thereof in charge of its business at 109 Harvey street, was not in charge of its business on January 16, 1904, and that no person in charge of its business had at that time been designated by the company as the authorized agent of the company, and that the Germantown Dairy Company had not at that time filed any amendment to its original registration certificate, which stated that John C. Nolan was the authorized agent, then the plaintiff had no standing in law to execute the contract upon which suit is brought and cannot enforce the same, and the verdict must be for the defendant. Answer: Refused. [5]
3. The contract sued upon is an entire contract, and in order to entitle the plaintiff to a verdict, he must prove entire performance or a waiver of entire performance by the defendant. Answer: Refused. [6]
4. Even if the jury believe the testimony of Mr. Penrose that the defendant, on January 16, 1904, stated that he did not want the lease transferred, there was no consideration for this waiver of entire performance by the defendant, and when the defendant afterwards demanded from the plaintiff that the lease should be assigned and transferred to him, it was the duty of the plaintiff to transfer and assign the same, and if the jury believe, from the evidence, that they did not transfer the lease and did not attempt to transfer the lease to the defendant, or attempt to secure the consent of the landlord, to an assignment of the lease, unless they were prevented from doing so by some action of the defendant, then there has been such a breach of the contract upon the part of the plaintiff as precludes him from recovery, and the verdict must be for the defendant. Answer: Refused. [7]
6. Under all the evidence the verdict must be for the defendant. Answer: Refused. [8]
The court charged in part as follows:
[If on the other hand, McCallum did release Penrose from his obligation to transfer that lease, and Penrose complied with the terms of the contract in all other respects, then the plaintiff is entitled to the amount unpaid.]
Verdict and judgment for plaintiff for $2,394.60. Defendant appealed.
Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-10) above instructions, quoting them.
The assignments of error are overruled and judgment affirmed.
E. O. Michener, for appellant. -- This provision of the constitution and the word "therein" in the act of assembly can only be construed to mean that the authorized agent or agents shall be in or at the known place of business: De La Vergne Refrigerating Machine Co. v. Kolischer, 14 Pa. Dist. Rep. 521.
There was no proper agent at the time the writ issued: Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. 526; Wall Paper Co.'s App., 15 Pa.Super. 407.
The court failed to charge the jury that in order to vary the terms of the contract the evidence must be clear, convincing and without doubt, and he should have further charged the jury that as the only testimony upon the point was that of the plaintiff, which was absolutely contradicted by the defendant, the agreement should be their guide: Wilkinson v. Becker, 155 Pa. 194; Phillips v. American Cement Tile Mfg. Co., 220 Pa. 141.
Such a release is not good without consideration: Lantz v. Ins. Co., 139 Pa. 546; Marvin v. Ins. Co., 85 N.Y. 278; Beech v. Kuder, 15 Pa.Super. 89; Mt. Holly Water Co. v. Mt. Holly Springs Borough, 10 Pa.Super. 162; Work v. Prall, 26 Pa.Super. 104.
It is respectfully submitted that the learned trial judge was in error in rejecting the testimony as set forth in the first, second and third assignments of error: Reyenthaler v. Philadelphia, 160 Pa. 195; Potter v. Gas Co., 183 Pa. 575.
William A. Carr, with him W. Horace Hepburn and Sidney L. Krauss, for appellee, cited as to the question of registration: De La Vergne Refrigerating Machine Co. v. Kolischer, 214 Pa. 400; Delaware River Quarry, etc., Co. v. Ry. Co., 204 Pa. 22; McManus Contracting Co. v. McFadden, 33 Pa.Super. 355; American Steel & Wire Co. v. Raleigh Coal & Coke Co., 10 Pa. Dist. Rep. 285.
Cited as to the question of the waiver of change of agreement relating to the transfer of the lease: McNish v. Reynolds, 95 Pa. 483; Flegal v. Hoover, 156 Pa. 276; Dreifus, Block & Co. v. Salvage Co., 194 Pa. 475; Hyde v. Kiehl, 183 Pa. 414; Trumbower v. Woodley, 26 Pa.Super. 249.
Cited as to the admissibility of the evidence excluded by the trial judge: Auberle v. McKeesport, 179 Pa. 321; Seifred v. Penna. R.R. Co., 206 Pa. 399; Philadelphia v. Dobbins, 24 Pa.Super. 136.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
The plaintiff, a foreign corporation doing business in Germantown in this state, by written article of agreement sold to the defendant its business plant consisting exclusively of personal property. It was provided in the agreement that plaintiff would assign and transfer to defendant any unexpired portion of the lease of the premises plaintiff had been occupying in its trade. The action was brought to recover so much of the price as remained unpaid. One of the defenses set up was failure on part of plaintiff to transfer the lease, in consequence of which, the defendant after a short occupancy of the premises was dispossessed by the landlord. In reply, Penrose, the president of the plaintiff company, testified that immediately upon the execution of the contract, while he and the defendant were on their way to obtain the lease and effect a transfer of the same, the latter, having learned from the witness that the dairy company had done no retail and but very little wholesale trade on the premises, expressed unwillingness to take over the lease, giving as a reason that being engaged in like business at another stand, he could there accommodate himself, and thus avoid the paying of rent; that thereupon instead...
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