McNish v. Reynolds

• Citation: 95 Pa. 483
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 08 November 1880
• Parties: McNish <I>versus</I> Reynolds, Lamberton & Co.

95 Pa. 483

McNish versus Reynolds, Lamberton & Co.

Supreme Court of Pennsylvania.

October 19, 1880.

November 8, 1880.

October 19th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas of Venango county: Of October and November Term 1880, No. 276.

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F. B. Guthrie and Julius Byles, for plaintiff in error.—In the case of a parol contract, a subsequent parol agreement to enlarge the time of performance is binding. The mutual promises of the parties to deliver and accept and pay are ample consideration for the new contract: Greenl. on Ev., sect. 304; Carrier v. Dilworth, 9 P. F. Smith 406; Wilgus v. Whitehead, 8 Norris 131; Robinson v. Batchelder, 4 N. H. 40; McCombs v. McKennan, 2 W. & S. 216; Keating v. Price, 1 Johns. Ch. 22. Forfeitures will only be enforced when it is clearly apparent that such was the intent of the parties.

C. Heydrick, for defendants in error.—The statement of the rule, in Wilgus v. Whitehead, 8 Norris 131, relied upon by plaintiff's counsel, as well as in Goss v. Lord Nugent, 5 B. & Ad. 58, and in Chitty on Contracts 154, plainly implies that after the breach of a written contract, its terms cannot be varied by an oral agreement without a new consideration. And the reason is obvious. After a breach there are no covenants to be performed, and consequently none to be varied or modified; the rights and obligations of the parties are changed; it is no longer a question of performance; it has become a question of damages. The right of the party who has performed or tendered performance to damages is fixed by the other party's breach and cannot be divested without a consideration. And so, it is conceded, might a new contract between Van Vleck and McNish have been sustained. The mutual promises would have been the consideration, each for the other, but not for a relinquishment of damages for the breach of a former contract: Wilgus v. Whitehead, supra; Goss v. Lord Nugent, 5 B. & Ad. 58.

Mr. Justice TRUNKEY delivered the opinion of the court, November 8th 1880.

Van Vleck contracted to sell to McNish five thousand barrels of oil at $2.51 ¼ per barrel, to be delivered at seller's option, at any time from April 20th to December 31st 1877, to be paid for as delivered. McNish testifies, that on the last day of June, at Titusville, Bettes, acting for the seller, tendered the oil to the buyer, who answered that he was not in condition to take the oil and pay for it, but could if he had a little time; whereupon the agent referred him to his principal. On the same day he went to Oil City and there met the principal, Van Vleck, and what passed he states thus: "I told him that owing to the failure of the bank my funds were all locked up in the bank; that I needed a little time to make different arrangements, which, if he would grant, I would take the oil. He asked me how long I wanted. I told him I could arrange for thirty days. He replied that if I would take the oil up he would give me the month of July to take it in. I told him I would arrange to take the oil in the month of July, and that was agreed upon, and we separated." He also said the tender was not withdrawn. For the purpose of the present inquiry this statement must be taken as true. It may have been exceedingly generous, or very foolish, in Van Vleck to change the contract into a buyer's option for one month, and the jury might not have believed a word of it; but if they did believe it they were instructed that, unless the tender was withdrawn, the plaintiff could not recover, "without a...