Kuhn v. Commonwealth

• Decision Date: 03 January 1928
• Docket Number: 29
• Citation: 291 Pa. 497,140 A. 527
• Parties: Kuhn, Appellant, v. Commonwealth
• Court: Pennsylvania Supreme Court

140 A. 527

Kuhn, Appellant, v. Commonwealth

291 Pa. 497

No. 29

Supreme Court of Pennsylvania

January 3, 1928

Argued November 30, 1927

Appeal, No. 29, May T., 1927, by plaintiff, from judgment of C.P. Dauphin Co., No. 113, Commonwealth Docket, 1925, for Commonwealth, on an appeal from settlement of account, in case of J. L. L. Kuhn v. Commonwealth. Affirmed.

Appeal under Act of March 30, 1811, 5 Sm. L. 228, from settlement of account by auditor general and state treasurer. Before HARGEST, P.J., and WICKERSHAM, J., without a jury.

Judgment for Commonwealth. Plaintiff appealed.

Error assigned, inter alia, was judgment, quoting record.

There is no merit in any of the numerous assignments of error and the judgment is affirmed.

J. W Swartz, for appellant. -- The Commonwealth had no right during the term of the contract in question, to discontinue the printing of the hunters' license tags required by the Commonwealth for the year 1924, and the Commonwealth in having said tags printed or stamped on aluminum plates, outside the contract, without the consent of the contractor, committed a breach of the contract and the plaintiff is entitled to claim prospective profits by reason thereof: Fisher v. Ronemus, 267 Pa. 325.

Roscoe R. Koch, Deputy Attorney General, with him Thomas J. Baldrige, Attorney General, for appellee, cited: Hague v. Phila., 48 Pa. 527; Trevorton Water Supply Co. v. Twp., 259 Pa. 31; Moore v. Luzerne Co., 262 Pa. 216; York Gazette Co. v. York Co., 25 Pa.Super. 517; Utah Power & Light Co. v. U.S., 243 U.S. 389, 61 L.Ed. 791; Bartholomew v. Lehigh Co., 148 Pa. 82; Consolidated Dressed Beef Co. v. Phila., 245 Pa. 268.

Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

Plaintiff brought this case into the court of common pleas on appeal from the settlement of the auditor general and state treasurer, rejecting his claim for damages for an alleged breach of contract. Jury trial being waived, the case came before the court on the pleadings, an agreed statement of facts and testimony. The trial court made findings of the facts, drew legal conclusions and in due course entered final judgment for the defendant; plaintiff has appealed.

A brief consideration is sufficient to vindicate the judgment. The superintendent of printing and binding, as was his duty advertised for sealed proposals for the state printing for a period commencing July 1, 1921. The bids were opened February 22d, of that year, and the contract was awarded to plaintiff as the lowest bidder. His bid on the entire state printing, for a term of four years, being seventy-two per cent below the maximum schedule rates named in the statute. The contract consisted of plaintiff's written proposal in the form of an agreement, duly certified by the superintendent of printing and binding and having thereon the written approval of the Governor, the auditor general and the state treasurer. The contract was to do all the printing, binding and other work generally executed in a printing and binding establishment, for the Commonwealth of Pennsylvania for the four years, no mention being made of any special items. The validity of the contract is not challenged; but the question here is, did it give plaintiff the right to print the hunters' license tags for the year 1924? These annual tags were first required by the Act of April 17, 1913, P.L. 85, amended by the Act of June 7, 1919, P.L. 433, and the duty of their preparation and distribution was committed to the board of game commissioners. Prior to the year 1924 the tags had been printed on waterproof material known as fabrikoid, supplied by the Commonwealth. That year the board decided to discontinue printing the tags and have them stamped and enameled on aluminum plates, which was done under a contract, by the State Industrial Reformatory, at Huntingdon. Admittedly this manner of preparing the tags was not printing within the terms of plaintiff's contract, and there is nothing in the Act of 1913, or any amendment thereof, requiring the printing of hunters' license tags. Neither is there such a requirement in any statute relating to state printing. Plaintiff's contract entitled him to do whatever printing the state had done during the term, but did not obligate the latter to have any particular work done for his benefit. As pertinently stated by the trial court, the legislature was not required to enact statutes that plaintiff might be profited by printing them. Had the legislature, during the session of 1921, or that of 1923, repealed the statutes providing for hunters' license tags, plaintiff would have had no legal ground of complaint. The general rule is that one merely entitled to the output of a mine or factory cannot compel its operation for his benefit. Had the Commonwealth let the contract for printing the hunters' license tags for 1924 to another, plaintiff might have just cause of complaint; but, as they were not printed for that year, he has none. It is not unlike the case of McKeever v. Iron Co., 138 Pa. 184, where it is held that a contract to purchase the coal required in a mill was not breached by vendee substituting gas for fuel during the contract period, thereby reducing the amount of coal consumed. The principle is illustrated by the rule that a contract for a season's output embraces only the amount which is, and not which might be, produced. See Kenan v. Yorkville Cotton Oil Co. (S.C.), 1 A.L.R. 1387, and note 1392. A grant of the right to take water from a canal does not impose upon the grantor the duty of maintaining water therein after...