Steel v. Loeb

• Decision Date: 23 July 1897
• Docket Number: 131-1897
• Citation: 5 Pa.Super. 238
• Parties: James Steel v. H. Loeb, Appellant
• Court: Pennsylvania Superior Court

5 Pa.Super. 238

James Steel v. H. Loeb, Appellant

No. 131-1897

Superior Court of Pennsylvania

July 23, 1897

Argued May 4, 1897

Appeal by defendant, from judgment of C. P. Jefferson Co.-1894, No 66, on verdict for plaintiff.

Assumpsit. Before Reed, P. J.

The facts sufficiently appear in the opinion of the court.

Verdict and judgment for plaintiff for $ 143.52. Defendant appealed.

Errors assigned were refusal of binding instructions for defendant.

A. L Cole, with him C. Z. Gordon and H. A. Moore, for appellant.

A. C White, with him John Conrad & Son, for appellee.

Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.

OPINION

BEAVER J.

The plaintiff declared upon a parol agreement made on the 18th of July, 1891, by and between himself and the defendant, for the sawing of certain lumber and logs thereafter to be cut and delivered at the dam of a sawmill in the statement described, in consideration of which the defendant agreed to pay to the plaintiff $ 1.70 per thousand. Upon the trial of the case, the plaintiff testified that the making of this parol agreement was the inducing cause to the execution of a written agreement made on the same day between himself and the defendant and one William Wingert for the cutting and delivering of the same logs which were the subject of the contract for sawing. The defendant thereupon objected to the admission of the testimony on the ground that the contract declared upon and concerning which the plaintiff testified tended to alter, change and add to the written agreement entered into on the same day by the plaintiff on the one part and the defendant and Wingert on the other part, and tried the case throughout upon the theory that the parol contract upon which the plaintiff sought to recover should have been included in the written contract, and, because it was not so included and its provisions tended to vary, alter and add to the terms of the written agreement, no recovery could be had. The defendant's point, the answer to which constitutes the error complained of, is that " the written contract of July 18, 1891, together with the receipt in full of all demands dated February 20, 1892, supported by the testimony of H. Loeb, cannot be altered, added to or changed by the unsupported testimony of James Steel, the plaintiff, and said written agreement must, therefore, stand as the actual contract between the parties." The second point was the same proposition put in different form, namely: " that, under the pleadings, the evidence and the law in this case, there can be no recovery, and the verdict must be for the defendant." The court refused the first point and in answer to the second said: " We reserve this as a question of law, reserving as a question of law whether, upon the whole evidence, the plaintiff is entitled to recover." The case was thereupon submitted to the jury and, after the verdict for the plaintiff, the court entered judgment thereon.

In commenting upon the connection between the parol agreement upon which the suit was brought and the written agreement introduced by the defendant, the trial judge in the charge to the jury says: " It is perplexing to us in that we are not clear on the pleadings and the evidence whether the plaintiff's right to recover is based on the written contract as amended by the alleged parol contract for the sawing of the timber or whether it is based on this alleged parol contract without regard to and independent of the written contract; but, inasmuch as the plaintiff alleges that the contract was made as a whole in parol in the first instance and that the part relating to the sawing was left out of the written contract at the...