Sidney School Furniture Co. v. Warsaw Township School District

• Decision Date: 30 October 1893
• Docket Number: 180
• Citation: Sidney School Furniture Co. v. Warsaw Township School District, 27 A. 856, 158 Pa. 35 (Pa. 1893)
• Parties: Sidney School Furniture Co., Appellant, v. Warsaw Township School District
• Court: Pennsylvania Supreme Court

27 A. 856

158 Pa. 35

Sidney School Furniture Co., Appellant, v. Warsaw Township School District

No. 180

Supreme Court of Pennsylvania

October 30, 1893

Argued October 3, 1893

Appeal, No. 180, Oct. T., 1892, by plaintiff, from judgment of C.P. Jefferson Co., Sept. T., 1885, No. 403, on verdict for defendant.

Assumpsit for goods sold and delivered. Pleas, non assumpsit and payment with leave, etc. [Cf. 130 Pa. 76.]

The facts appear by the opinion of the Supreme Court.

At the trial, before WILSON, P.J., the court, under objection and exception, admitted evidence of the parol agreement referred to in the opinion of the Supreme Court. [1-4.]

Plaintiff offered to show by S.W. Temple, a witness for defendant, on cross-examination, that when the school district was negotiating with agents of other companies for the purchase of furniture, that it was a condition that whoever received the contract should indemnify the township against any action or suit brought by plaintiff. Objected to, objection sustained and exception. [7, 8, 12-16.]

The court, under objection and exception, admitted the evidence of various witnesses to the effect that the furniture delivered by plaintiff was defective. [5, 6, 9, 10.]

When T F. Richard, a witness for defendant, was on the stand, he was asked: "Q. State whether or not you would have voted for the resolution if those representations that you have testified to had not been made?" Plaintiff's counsel object to the question as asking for a conclusion. Objection overruled, testimony admitted and exception. [11]

The witness answered in the negative.

The court, under objection and exception, admitted the telegrams quoted in the opinion of the Supreme Court. [17]

Plaintiff's points were among others as follows:

"3. That if the jury find from the evidence that plaintiff has complied with his part of the contract in this case and that the defendant corporation elected to rescind the said written contract by setting up an alleged parol contemporaneous agreement giving them that right, and they acted on it, then they are bound by that election, and if they refused to receive the furniture and pay for it because of the alleged right to rescind, and before an actual bona fide inspection of the furniture, or an opportunity was had to judge of its quality or merits, then that was a waiver of all defences on account of the actual quality of the furniture, and unless the jury should find that the defendant has proven by clear precise, and indubitable evidence that there was such a parol agreement, the plaintiff is entitled to recover in this action the contract price of the furniture." Refused [18]

"4. That if the jury find from the evidence that the defendant corporation elected to rescind the contract and refused to receive the furniture before an actual bona fide inspection of it, or before an opportunity was had to judge of its quality or merits, then the defendant is estopped from setting up that the furniture was not of the kind and quality called for in the contract." Refused. [19]

"5. That if the jury find from the evidence that there was no contemporaneous parol agreement made altering the written contract, and as the guaranty of the plaintiff, as therein contained, provides that the furniture shall be made of seasoned material and give good satisfaction, then if the jury further find that the defendant refused to receive and pay for the furniture as provided in the contract before they had any opportunity to examine it and ascertain whether it was of the kind and quality called for in the contract, then their rejection was prematurely made, and under the pleadings in this case the defendant cannot set up that the furniture was not of the kind and quality called for in the contract as a bar to this action." Refused. [20]

"7. That the evidence offered on the part of the defendant in this case to set aside the written contract is not of that clear, precise, and indubitable character required to establish a contemporaneous parol agreement to set aside the written contract, and the written contract must be taken as the agreement of the parties." Refused. [21]

"8. Whereas the written contract in this case, dated July 25, 1885, contains the following notice: 'This contract is to be the guide of purchasers, therefore make it plain to them and leave them a duplicate,' and as this notice was strictly complied with by the plaintiff's agent, defendants are precluded from setting up any contemporaneous parol contract not contained or embraced in the written contract." Refused. [22]

Defendants' points were as follows:

"1. If the jury believe from the evidence that plaintiff's agent, H. M. Sweet, at the time of making the contract for the furniture, as an inducement to obtain the contract referred the defendant to furniture in the Du Bois and Coder school houses, or either of them, as specimens of the manufacture of the firm he represented, and agreed, if upon examination of the furniture there found it was unsatisfactory, they need not accept the furniture ordered, and if the contract was executed by the defendant on the faith of such verbal agreement, and the defendant promptly made the examinations and found the furniture unsatisfactory and notified the plaintiff within a reasonable time thereafter not to ship it, they were not bound to receive it, and if the jury so find, their verdict should be for the defendant." Affirmed. [23]

"2. If Sweet, the plaintiff's agent, made false and fraudulent representations of a material character to obtain the contract, by which the defendants were induced to make the contract, and as soon as defendants found such representations to be false, they annulled the contract and so notified the plaintiff within a reasonable time, they were released, and if the jury so find, their verdict should be for the defendant." Affirmed. [24]

"3. If the jury believe from the evidence that, as an inducement to obtain the contract in suit, the plaintiff's agent, Sweet, exhibited a sample desk to the school board and agreed that if the furniture to be shipped in pursuance of said contract should not be as good in all respects as the said sample, the defendant need not accept the same, and the contract was entered into on the faith of such representations and agreement, such verbal agreement would be binding on the plaintiff, and if the furniture shipped was not as good in all respects as the said sample, and the defendant refused to accept or pay for the same, and the plaintiff had notice of such refusal, their verdict should be for the defendant." Affirmed. [25]

"4. If the furniture delivered at Brockwayville was not substantially up to the guaranty contained in the contract, the verdict of the jury should be for the defendant." Affirmed. [26]

"5. If the jury find from the evidence that only part of the furniture shipped was in accordance with the contract and that the rest was inferior, the defendant was not bound to accept any of it." Affirmed. [27]

"6. That if before any goods were shipped or set apart for the defendant, the defendant countermanded the order, and the plaintiff received said countermand, the verdict of the jury should be for the defendant." Affirmed. [28]

"7. If the jury find that Loughlin [president of plaintiff company] had no knowledge of the date of the shipment of the goods except what he derived from written entries on his books, not made by himself, or other written evidence not produced, they should disregard his testimony on that subject, in making up their verdict." Affirmed. [29]

The court charged in part as follows:

"The defendant also submitted another point, No. 8, and by their consent that point is not answered, but in lieu thereof this instruction is given: During the trial some of the members of the board were asked if they would have voted for the resolution on the minutes under the circumstances if they had not understood the contract as they now maintain it to be -- or substantially the same, and they severally replied they would not. This testimony is struck out and withdrawn from the jury, and the objections taken thereto by plaintiff's counsel are sustained, and the prior rulings in conflict herewith are changed as above. There is some doubt in the minds of the counsel as to exactly what was done. My recollection is that in some instances when witnesses were asked that question, exception was taken, in others, it was not; therefore, to make it plain, this instruction is given to the jury, -- so that it is all out; that is, anything they would not have done if it had not been under the circumstances stated." [30]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1-17) rulings on evidence; (18-30) instructions; quoting bills of exceptions, evidence and instructions.

Judgment affirmed.

H. Clay Campbell, Alexander C. White with him, for appellant. -- The school board having made a record and minute of their proceedings, that must be taken as the official action of the board, and the best evidence of what was done by them in their official capacity. The offers do not propose to show or prove that anything was left out of the minutes by fraud, accident or mistake: Act of May 8, 1854, P.L. 617; 1 Dill. Mun. Corp. § 298; Gearhart v. Dixon, 1 Pa. 224; School District v. McBride, 22 Pa. 215; Walker v. France, 112 Pa. 203; Thomas v. Loose, 114 Pa. 35; Ferguson v. Rafferty, 128 Pa. 337.

Besides, defendant had distinct notice that no one was authorized to change, modify or in any way affect the writing, by verbal agreement or otherwise: Thomas v. Loose, 114 Pa. 35; Express Publishing Co. v. Aldine Press, 126 Pa. 347.

Defendants are not permitted to testify their unexpressed intent, motive or belief,...