The Delaware and Hudson Canal Company v. Barnes et al.

• Decision Date: 01 January 1858
• Citation: 31 Pa. 193
• Parties: The Delaware and Hudson Canal Company versus Barnes et al.
• Court: Pennsylvania Supreme Court

Page 193

31 Pa. 193

The Delaware and Hudson Canal Company versus Barnes et al.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Pike county.

W. Jessup and W. H. Dimmick, for the plaintiffs in error.— The evidence was not only irrelevant, but its tendency was to mislead the minds of the jury from the true issue made on the contract; and the evil was not cured by telling the jury that this evidence was not to be regarded: Shaeffer v. Kreitzer, 6 Binn. 430; Nash v. Gilkeson, 5 S. & R. 352. These cases were not overruled by Miller v. Miller, 4 Barr 317, and Unangst v. Kraemer, 8 W. & S. 401. In Miller v. Miller, the paper was offered in mistake, and was immediately withdrawn; and in Unangst v. Kraemer, although the evidence was offered, admitted, and a bill of exceptions sealed, yet, when the witness came to testify, it was discovered that the party whose declarations were offered to be proved, did not own the land at the time of making the declarations, and the court, thereupon, excluded the evidence.

For a remedy for the wrong verdict, it is said we should move for a new trial. The present case shows that the plaintiffs in error are without remedy. There is nothing in the evidence to sustain the verdict. It is against the charge of the court, and yet a majority of the court refuse a new trial.

J. M. Porter and M. Goepp, for defendants in error.—The cases of Shaeffer v. Kreitzer and Nash v. Gilkeson were overruled in Unangst v. Kraemer, 8 W. & S. 401, and Miller v. Miller, 4 Barr 317. In Lynn's Analytical Index 748, the case of Nash v. Gilkeson is classed in the list of overruled cases, and Unangst v. Kraemer, and Miller v. Miller, are cited as the authorities. See also Meals v. Brandon, 4 Harris 224, in support of the same principle.

The opinion of the court was delivered by STRONG, J.

That the advertisement of February 10th 1851, was improperly received in evidence, is too apparent to require discussion. The contract between the parties had been proved by a single witness. He testified that Barnes & Harlan, the plaintiffs, agreed to transport coal for the defendants under the general boating contract, and he identified that contract. It was a printed instrument, and, though not signed, it was agreed to by both parties. In the language of the witness, "it contained all the terms on which the parties agreed to boat." Consequently, the advertisement was inadmissible, either to aid in its construction, or to introduce new terms. It is true, that when the proof of an alleged contract is partly parol, and partly written, the whole must go to the jury. In such a case, they are to determine, not only whether any contract was made, but what it was. This is no such case. There was no room for the assertion that other stipulations existed between the parties than those contained in the printed instrument. There was no mixture of written and parol evidence, to warrant a determination by the jury of what the contract was. It was wholly written evidence. That the adoption of the contract was proved by oral testimony, is quite immaterial. The execution of almost every written contract is proved by parol, yet its construction is not, on that account, committed to the jury; nor can other and distinct papers be resorted to, in order to ascertain what the parties intended. Moreover, even if the construction as well as the existence of the contract had been for the jury, it would have been no reason for the admission of the advertisement. There was no proof that the parties had agreed that the stipulations of the advertisement should be incorporated into their contract. The subsequent adoption of a printed form of an agreement, furnishes the strongest implication to the contrary. That agreement was complete; and all antecedent proposals were, therefore, not accepted, or merged in it.

The error in receiving the advertisement was followed by another more important, namely: the admission of evidence to prove "that the company did not furnish, in the summit level of their canal, a supply of water sufficient to enable the boatmen of the plaintiffs to make trips in ten or eleven days; and that they could have furnished a sufficient supply, if they had thought proper to do so." This, the plaintiffs alleged, was a breach of the contract, basing their allegation upon the assumption that the contract bound the defendants to keep up a sufficient supply of water at all seasons. We have not been able to discover that any such liability was assumed by the defendants, either in the printed contract, or in the advertisement, had that been admissible in evidence. Both parties had been familiar with the condition of the canal during the previous year, and that familiarity probably induced the contract. Into that contract no stipulation was introduced requiring the company to furnish means for supplying water additional to those then existing, or so to construct their canal, that a trip could be made, at all seasons, in ten or eleven days. Even in the advertisement itself, we perceive no such engagements; and without it, there can be no just pretence that any such liability existed. But, as the advertisement was...