Ruth-Hastings Glass Tube Co. v. Slattery
| Decision Date | 02 February 1920 |
| Docket Number | 24 |
| Citation | 109 A. 695,266 Pa. 288 |
| Parties | Ruth-Hastings Glass Tube Company v. Slattery, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 7, 1920
Appeal, No. 24, Jan. T., 1920, by defendant, from judgment of C.P. No. 2, Philadelphia Co., June T., 1917, No. 1617, on verdict for plaintiff in the case of Ruth-Hastings Glass Tube Company v. Thomas F. Slattery, Trading as Slattery Brothers. Reversed.
Assumpsit to recover sum of $6,165.50 alleged to be due as damages for breach of contract to deliver coal. Before ROGERS, J.
Verdict and judgment for plaintiff for $3,495.40. Defendant appealed.
Errors assigned were rulings on evidence and various answers to points.
The judgment of the court below is reversed and a venire facias de novo awarded.
Thomas H. McCaffrey, for appellant. -- In determining whether a contract is entire or severable it is necessary to ascertain the intention of the parties: Shinn v. Bodine, 60 Pa. 182; Scott v. Kittanning Coal Co., 89 Pa. 231; Rugg and Bryan v. Moore, 110 Pa. 236; Producers Coke Co. v. Hillman, 243 Pa. 313.
The statement of claim asserts that the contract had been modified. The plaintiff is bound by his pleadings: Kime v. Tobyhanna Creek Ice Co., 240 Pa. 61.
A written contract may be modified by a subsequent oral agreement, and the parol evidence rule does not exclude oral evidence thereof: Beatty v. Larzelere, 194 Pa. 605; Fleck v. Collins, 28 Pa.Super. 443; McCauley v Keller, 130 Pa. 53.
The meaning placed upon the contract by the parties governs People's Natural Gas Co. v. Braddock Wire Co., 155 Pa. 22; Sherman v. Consolidated Dental Manufacturing Co., 202 Pa. 446.
W. Horace Hepburn, Jr., for appellee. -- The plaintiff does not have to purchase coal in the open market, but the damages are the difference between the market price and the contract price: Shreve v. Brereton, 51 Pa. 175.
Before MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.
Plaintiff sued to recover on a written contract, by which defendant agreed to sell and plaintiff agreed to buy "3,000 tons more or less" of bituminous coal from the George's Creek district, at the price of $1.75 per ton, to be delivered f.o.b. mines, in about equal monthly installments ending April 1, 1917, the contract containing the usual clause relieving the vendor of liability in case of a failure to deliver because of strikes, interruption of transportation, or other causes beyond his control. Plaintiff alleged defendant delivered only a little over 1,276 tons, and claimed to recover the difference between the contract price and the market price of the balance, at the time and place of delivery.
The affidavit of defense admitted the execution of the contract, and the quantity delivered, but averred defendant's failure to deliver more was due to a shortage of cars at the Eckhart Mine in the George's Creek district, from which mine he alleged all coal deliverable under the contract was to be obtained; and also that he was not obliged to deliver to plaintiff 3,000 tons, but only so much thereof as was necessary to enable plaintiff to run its plant.
Plaintiff having recovered a verdict and judgment, defendant now appeals, and its principal assignments allege errors regarding the two matters above specified. All those relating to the first thereof must fail, because the contract does not refer to the Eckhart mine, and there is no allegation that anything was omitted by fraud, accident or mistake, or that any promise was made to induce its execution, and hence it cannot be overthrown or modified by oral evidence (Krueger v. Nicola, 205 Pa. 38; General Motors Truck Company v. Philadelphia Paving Co., 248 Pa. 499), especially as section 16 of the Practice Act of May 14, 1915, P.L. 483, provides that "Neither party shall be permitted at the trial to make any defense which is not set forth in the affidavit of defense or plaintiff's reply, as the case may be," except where the action is trespass or the defendants are fiduciaries.
This section has worked a wise and vital change in practice, though some of the profession do not seem to appreciate it. Except where court rules provided otherwise, the only purpose of an affidavit of defense under the prior law was to prevent summary judgment. Under this section, however, it is an essential part of the pleadings, and the court below should refuse to admit evidence upon any issue not raised thereby. The provision for amendments gives ample opportunity for the curing of oversights; and hence where, as here, the evidence offered is not within the issues raised either by the original pleadings or amendments thereof, its exclusion by the court below must be approved.
Defendant's fourth point embodied in the twelfth assignment of error, deals with the second of said issues, and should have been affirmed. It is as follows:
It will be noticed that defendant did not agree to deliver 3,000 tons of coal, but only "3,000 tons more or less." This is an indefinite quantity, and especially subjects the contract to the rule that "every agreement should be interpreted with reference to the circumstances under which the parties contract and in the light of the objects to be accomplished": McKeesport Machine Co. v. The Ben Franklin Insurance Co., 173 Pa. 53; Myers's Est. 238 Pa. 195, 211. It is true the words "3,000 tons more or less" ordinarily would be construed to mean that the amount should be approximately that stated,...
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