Producers Coke Co. v. Hoover

• Decision Date: 26 June 1920
• Docket Number: 167
• Citation: 110 A. 733,268 Pa. 104
• Parties: Producers Coke Co. v. Hoover, Appellant
• Court: Pennsylvania Supreme Court

110 A. 733

268 Pa. 104

Producers Coke Co. v. Hoover, Appellant

No. 167

Supreme Court of Pennsylvania

June 26, 1920

Argued May 11, 1920

Appeal, No. 167, Jan. T., 1920, by defendant, from judgment of C.P. Fayette Co., March T., 1918, No. 230, on verdict for plaintiff, in case of Producers Coke Co. v. James H. Hoover. Reversed.

Assumpsit for breach of contract for sale of coke. Before VAN SWEARINGEN, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $144,898.38. Defendant appealed.

Errors assigned were rulings and instructions mentioned in the opinion of the Supreme Court, quoting them.

The judgment is reversed and a venire facias de novo awarded.

W. C McKean, of Umbel, Robinson, McKean & Williams, for appellant. -- It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed or a new one substituted Holloway v. Frick, 149 Pa. 178; Reber v. Brownback, 27 Pa.Super. 471; Germantown Dairy Co. v. McCallum, 223 Pa. 554; Achenbach v. Stoddard, 253 Pa. 338; Malone v. R.R., 157 Pa. 430.

The Sales Act of May 19, 1915, P.L. 543, did not change the law in this particular and require the contract between the parties herein for the purchase and sale of coke, and any modification or change therein, between the same parties, to be in writing, to the exclusion of any other kind of a contract: Garfield v. Paris, 96 U.S. 557.

W. J. Sturgis, with him S. J. Morrow and E. C. Higbee, for appellee, cited: Musselman v. Stoner, 31 Pa. 265; Espy v. Anderson, 14 Pa. 308.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE WALLING:

This action is for breach of contract for sale of coke. On November 17, 1916, the parties hereto entered into a written contract by which defendant agreed to sell and deliver plaintiff 48,000 tons of coke, at the price of $3.60 per ton, to be delivered at the rate of 4,000 tons per month during the year 1917. Deliveries were made from time to time during the first seven months of that year, amounting in all to 18,895 tons, and then ceased. There was a sharp advance in the price of coke, and, in January, 1918, plaintiff brought this suit for the difference between the contract price and the market price of the balance of the 48,000 tons, amounting to $150,898.38.

The affidavit of defense averred a parol modification of the contract, made in January, 1917, reducing the amount of coke to approximately four-sevenths of that called for in the written contract; and that, in performance of the modified contract, defendant delivered coke during each of the first seven months of 1917, being the 18,895 tons above mentioned, which was accepted and paid for by plaintiff; and that then the latter demanded performance of the original contract and refused to accept coke in accordance with the modification thereof. At the trial defendant offered testimony in support of such averments, to which plaintiff objected because the alleged modification of the contract was not in writing. The trial judge sustained the objection, and, as no other defense was interposed, practically instructed the jury to find for the plaintiff, which they did for the full amount of the claim, less an admitted credit of $6,000. From judgment entered upon the verdict defendant brought this appeal.

The rejection of the testimony offered in support of the alleged parol modification of the contract was error. It is a general rule at common law that the parties to a written agreement may modify it by a subsequent parol agreement: Germantown Dairy Co. v. McCallum, 223 Pa. 554; Holloway v. Frick, 149 Pa. 178; Grace Contracting Company v. N. & W. Ry. Co., 259 Pa. 241; Reber v. Brownback, 27 Pa.Super. 471. Plaintiff, while conceding the rule, contends that it does not apply here because of the first clause of section 4 of the Sales Act of May 19, 1915, P.L. 543, Purdon's Digest (13th ed.) vol. 6, p. 7573, viz: "A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf." True, thereunder a mere parol contract for the sale of goods to the value of $500 or upwards, without more, is not enforceable, but the act points out three ways by either of which it may be validated: (a) an acceptance and actual receipt by the purchaser of a part of the goods contracted for; (b) the giving of something in earnest to bind the bargain or in part payment; or (c) a memorandum in writing of the sale signed by the party to be charged therewith. Hence, a parol contract of sale when part of the goods have been accepted or part of the consideration paid, is just as enforceable as a written contract. Here defendant's offer was to prove not only that the written contract had been modified by the parol contract, but also that for seven months thereafter the coke had been delivered, accepted and paid for under the latter; if so, it would be valid although not in writing. Of course the burden was upon the defendant to prove, by evidence convincing to the jury, the alleged parol contract (Achenbach v. Stoddard, 253 Pa. 338; and see Malone & Son v. Railroad Co., 157 Pa. 430) and that it had been in part performed.

Had the new contract been put in writing no one could question its validity, for parties may change or rescind their contracts at pleasure; and yet when part performed a verbal contract for sale of goods has, under the statute, the same force as a...