N.W. Consol. Milling Co. v. Allebach

• Decision Date: 29 February 1924
• Docket Number: 262-1923
• Citation: 82 Pa.Super. 563
• Parties: Northwestern Consolidated Milling Company v. Allebach, Appellant
• Court: Pennsylvania Superior Court

82 Pa.Super. 563

Northwestern Consolidated Milling Company v. Allebach, Appellant

No. 262-1923

Superior Court of Pennsylvania

February 29, 1924

Argued December 4, 1923

Appeal by defendant, from judgment of C.P. Montgomery Co.-1920, No 206, in favor of plaintiff in the case of The N.W Consolidated Milling Company v. A. T. Allebach.

Assumpsit for breach of contract. Before Miller, P. J., without a jury.

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

The court entered judgment in favor of the plaintiff in the sum of $ 837.50. Defendant appealed.

Errors assigned were various findings of fact, conclusions of law and the judgment of the court.

Reversed.

Aaron S. Swartz, Jr., and with him John M. Dettra, Samuel H. High and Montgomery Evans, for appellant. -- There was not a sufficient acknowledgment in writing to satisfy the statute of frauds: Upton Mills v. Baldwin, 179 N.W. 904; Fowler Elevator Company v. Cottrell, 38 Neb. 512; Schwarzenbach v. Schwartz, et al., 193 N.Y.S. 573; Lippincott v. Stringer, 80 S.Ct. 162; Southern Pines Sales Corporation v. Braddock Lumber Co., 81 Pa.Super. 309.

Thomas Hallman, and with him E. L. Hallman, for appellee.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

KELLER J.

There is some conflict in the decisions construing the fourth section of the Uniform Sales Act (Act of May 19, 1915, P. L. 543), as to whether a written cancellation of a verbal contract for the sale of goods may constitute a sufficient note or memorandum in writing of the contract to permit its enforcement by action. The weight of authority seems to be that the written unambiguous recognition of the contract and of its terms is sufficient even though it contains an express repudiation of the contract: Lawley Corp. v. Bupp, 230 Mass. 21, 119 N.E. 186. But to have this result it must constitute a complete authentication in writing of the contract and its terms: Upton Mill & Elevator Co. v. Baldwin Flour Mills (Minn.) 147 Minn. 205, 179 N.W. 904. If it contradicts or disputes the terms of the alleged contract it is not sufficient: Southern Pine Sales Corp. v. Braddock Lumber Co., 81 Pa.Super. 309; Juillard v. Trokie, 139 A.D. 530, 124 N.Y.S. 121, affirmed, 203 N.Y. 604, 96 N.E. 1117; nor is it if it denies the authority of the agent to make the contract: Upton Mill & Elevator Co. v. Baldwin Flour Mills, supra; nor, if there was a prior rescission of the contract: Lippincott v. Stringer, 80 Pa.Super. 162; Porter v. Patterson, (Ind.) 42 Ind.App. 404, 85 N.E. 797.

And if one party sends to the other a written confirmation of a verbal contract containing terms and provisions differing from those orally agreed upon, the latter may cancel or repudiate the contract in writing without making himself liable in an action for its enforcement: Juillard v. Trokie, supra; Colleton Realty Co. v. Folk, 85 S.C. 84, 67 S.E. 156, 157. And it has been held that where a written confirmation of a previous parol order was returned unsigned by the defendant, with a request that the order be cancelled, this did not constitute a recognition of or assent to the written contract: Schwarzenbach v. Schwartz, 193 N.Y.S. 573.

In the present case a verbal order was given by defendant to plaintiff's agent for some flour and middlings on certain terms as to price and delivery. A written order or confirmation was sent defendant for his signature. This order form changed the shipment from " rush" to " prompt" and contained a long string of terms and conditions (eleven in number), which it is not testified formed any part of the verbal order, and one of which sanctioned any shipment made within sixty days. Defendant wrote across the face of it, " Please cancel and oblige A. T. A." (his initials). In our opinion this was not an unequivocal or unambiguous recognition that an oral contract had been entered into on the terms set forth in the written order; it was only a cancellation of the verbal order, not a recognition that it conformed as to terms and conditions with the written form presented for his signature: Schwarzenbach v. Schwartz, supra.

But there is another reason which in our judgment prevents a recovery by the plaintiff. No binding oral contract had been entered into between the parties. Plaintiff's salesman, who took defendant's order, had no authority to make a contract of sale; his authority was limited to taking orders which had to be approved by the home office at Minneapolis. He reduced the order to writing and forwarded it to his immediate superiors at Philadelphia, who prepared and sent the order (partly written and partly printed) to the defendant by mail. It matters not whether we call it an order or confirmation. The transaction required confirmation by the buyer no less than the seller; and the form set forth that the plaintiff agreed to sell and the buyer to buy the subject matter of the contract on the terms and conditions therein set forth. It was signed on behalf of the plaintiff by its Philadelphia agent, but it contained in large type at the bottom these words: " This contract is subject to confirmation by the seller." This could have no other meaning than that after the paper had been signed on the plaintiff's behalf by its agent, and by the defendant, it had to be submitted to the plaintiff company at...