Hahn v. Andrews
| Decision Date | 13 November 1956 |
| Citation | 126 A.2d 519,182 Pa.Super. 338 |
| Parties | Clark HAHN, Appellant, v. Frederick F. ANDREWS and Rosemarie L. Andrews (two cases). |
| Court | Pennsylvania Superior Court |
Everett Kent, Bangor, S. Maxwell Flitter, Easton, for Clark Hahn.
Francis H. S. Ede, Pen Argyl, for Andrews.
Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT , WOODSIDE, ERVIN and CARR, JJ.
Plaintiff, Clark Hahn, instituted an action of foreign attachment against Frederick F. Andrews and Rosemarie L. Andrews, his wife, seeking damages for the breach of an oral contract whereby plaintiff agreed to buy and defendants agreed to sell a certain retail oil business for the sum of $4,800. The plaintiff obtained a verdict in the sum of $1. The plaintiff filed a motion for a new trial because of the inadequacy of the verdict. The defendants filed a motion for judgment n. o. v. Both motions were dismissed by the lower court and both parties appealed. The facts and inferences therefrom most favorable to the plaintiff, he having won the verdict, may be summarized as follows:
On or about August 16, 1948, the parties entered into an oral contract in the sum of $4,800, and the plaintiff paid $2,500 on account. For his $4,800 the plaintiff was to receive the fuel oil business, including good will, and a 1946 G.M.C. fuel oil truck with the accessories included. In addition, the defendants promised to deliver to plaintiff the names and addresses of 85 to 100 customers and to visit the homes of the customers with plaintiff for the purpose of introducing him and recommending that they continue to purchase fuel oil from him. On the aforementioned date, the defendants stated that they were about to leave on vacation for about 10 days and after their return they would visit the homes of the customers with the plaintiff for the above mentioned purposes. At that time defendants were to transfer the title to the truck to plaintiff, after which the $2,300 balance of the purchase price was to be paid. On numerous occasions thereafter the plaintiff requested defendants to transfer the title to the truck and to visit the customers with him but the defendants refused to do so.
On March 7, 1949, the defendants, without notice to plaintiff, went to the parking lot where the plaintiff stored the oil truck and towed it away. Shortly thereafter the plaintiff instituted a suit in replevin and the jury rendered a verdict in favor of the defendants in the sum of plaintiff's declared value of $2,500. This judgment was affirmed by the Supreme Court. See Hahn v. Andrews, 370 Pa. 65, 87 A.2d 284. The replevin action merely determined the right to possession of the truck and the Supreme Court said that any claims which the purchaser may have against the seller must be asserted in an independent proceeding. The present action was undoubtedly brought for that purpose. As a result of the verdict for the plaintiff in the present case the status of the parties is now as follows:
On August 16, 1948, when the oral agreement was made, plaintiff paid to the defendants $2,500.
The defendants have a $2,500 judgment against plaintiff in the replevin action. 1
The verdict of the jury in the present action determines that the terms of the contract were as stated by the plaintiff and that the defendants breached the same by not introducing and recommending the plaintiff to the defendants' 85 to 100 customers.
The defendants have received $5,000 in cash or its equivalent and the plaintiff has received nothing but the truck and the oil purchasing rights.
The plaintiff was to pay only $4,800 for the entire bargain. He has in effect paid $5,000 and the defendants have failed to deliver to him a very substantial part of the bargain, to wit: the introduction and recommendation to defendants' 85 to 100 customers. The plaintiff continued getting oil from the same source that defendants had and plaintiff continued to sell oil in the Bangor and Pen Argyl vicinity, using the said truck to deliver the oil. Indirectly plaintiff had gotten only four of the defendants' former customers. So that justice may be done it is our opinion that a new trial must be granted so that the plaintiff may be given an opportunity to prove his damages. The plaintiff's efforts to prove damages were completely blocked by the lower court.
The plaintiff, who was operating a small oil business in this community, was not permitted to testify what it would cost to operate a business such as he bought from the defendants. He was not permitted to show how much oil he was selling per month or per year. He was not permitted to testify concerning the sale of a similar business which occurred shortly after August 16, 1948. He was not permitted to tell what profits would have been derived from this very business, notwithstanding the testimony showed that he had looked at the books of this business and that the defendants admitted that it was earning profits. The lower court felt that the plaintiff's answers 'would have been a self-serving guess.' The lower court's ruling was prompted also by its opinion that 'one doesn't 'receive' customers: one develops them.' It is reasonably certain that plaintiff could have retained a goodly portion of the 85 to 100 customers if defendants had performed their promises. At least plaintiff should have been given the opportunity to do so. In an oil business the dealer knows when he last delivered oil and when his customer will be needing it again. We believe that most customers today depend upon their dealer to keep them supplied with oil as and when it is needed without the necessity of a call. To have an entree to a list of customers in this particular kind of a going and established business is a valuable asset.
We hesitate to offer any advice as to how this case should be tried but inasmuch as it has already been tried three times we believe it proper to cite several principles of law applicable to the proof of damages in a case of this kind.
In the first place, it should be realized that this is not the usual sale of an article or goods for which a substitute can be readily found on the open market. In such a case the proof of damages is comparatively simple. Here we are concerned with the sale of a going and established business. It was a business in which profits had been regularly made, according to the defendants. It should be easy to determine from the books of the defendants what the receipts, expenditures and profits were. The jury, in the possession of this factual information, would not be obliged to guess at the value of such a business. If there were any similar sales of like businesses in this community at or about the time of this sale, we believe it would be helpful to let the jury have this information.
The plaintiff did not elect to rescind the agreement because he continued to carry on the oil business. He procured the oil from the source which defendants had assigned to him. He retained the truck and its accessories and used it to deliver the oil to whatever customers he could get in the same community wherein defendants had formerly operated. The present action must necessarily be for damages for breach of contract. Plaintiff cannot retain some of the benefits under the agreement and at the same time rescind the agreement. 2 Stanley Drug Co., etc., v. Smith, Kline & French Laboratories, 313 Pa. 368, 170 A. 274.
To continue reading
Request your trial
-
Aiken Industries, Inc. v. Estate of Wilson
...384 Pa. 233, 120 A.2d 533 (1956); Lambert v. Durallium Products Corporation, 364 Pa. 284, 72 A.2d 66 (1950); Hahn v. Andrews, 182 Pa.Super. 338, 126 A.2d 519 (1956). We believe that appellee Aiken presented evidence enough to prove that it had suffered substantial damages and that the amoun......