York Metal & Alloys Co. v. Cyclops Steel Co.
Citation | 124 A. 752,280 Pa. 585 |
Decision Date | 19 May 1924 |
Docket Number | 316 |
Parties | York Metal & Alloys Co. v. Cyclops Steel Co., Appellant |
Court | United States State Supreme Court of Pennsylvania |
Argued April 29, 1924
Appeal, No. 316, Jan. T., 1924, by defendant, from order of C.P. Crawford Co., Feb. T., 1923, No. 23, making absolute rule for judgment for want of sufficient affidavit of defense, in case of York Metal & Alloys Co. v. Cyclops Steel Co. Affirmed.
Assumpsit for breach of contract.
Rule for judgment for want of sufficient affidavit of defense. Before PRATHER, P.J.
The opinion of the Supreme Court states the facts.
Rule absolute. Defendant appealed.
Error assigned was order, quoting record.
The judgment is affirmed.
E. H Wicks, with him Morris, Walker & Boyle, for appellant. -- The instrument of 1921 is unsupported by legal consideration, is lacking in mutuality and is therefore void: Pride v Randall, 34 Montg. 189; Weed v. Spears, 193 N.Y. 289.
Charles W. Benedict, with him Donald H. Yost, for appellee. -- The supplemental contract is not nudum pactum and is not void for want of consideration: Burnett v. R.R., 176 Pa. 45; Musser v. Stauffer, 192 Pa. 398; Flegal v. Hoover, 156 Pa. 276; Waverly Nat. Bank v. Hall, 150 Pa. 466; Baum v. Birchall, 150 Pa. 164; Grogan & Merz v. Express Co., 114 Pa. 523; Hughes v. R.R., 202 Pa. 222; Dreifus, Block & Co. v. Salvage Co., 194 Pa. 475; McNish v. Reynolds, 95 Pa. 483; Brentwood Realty Co. v. Moses, 73 Pa.Super. 307; Michael v. Stuber, 73 Pa.Super. 390.
The supplemental contract, is not void for want of mutuality: Grove v. Hodges, 55 Pa. 504; Phila. Ball Club v. Lajoie, 202 Pa. 210; Corbet v. Fuel Supply Co., 21 Pa.Super. 80; Kirkpatrick & Lyons v. Bonsall, 72 Pa. 155.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
The plaintiff, York Metal & Alloys Company, agreed, on June 20, 1920, to sell defendant 85,000 pounds of tungsten powder at a fixed price, one-half to be delivered by the first of January following. This contract was executed in New York, though the place of performance was Pennsylvania, where both parties had their respective business offices. Prior to April 8, 1921, more than one-half of all of the product purchased was delivered, and the balance had been prepared and held in the warehouse of plaintiff awaiting shipping orders. In the meantime, disputes arose concerning the quality of the material furnished, defendant insisting the powder could not be used by it unless mixed with a higher grade, and also claiming to have suffered damage as a result. There was a default on its part in the payment of $2,604.15, due on the invoice of December 6, 1920. In February, complaint was renewed as to the character of the goods sold, but defendant agreed to accept the balance of the amount ordered, if given the privilege of delay in receiving and settling for the portion unshipped.
This controversy resulted in a new contract, dated April 8, 1921, a time subsequent to the complaint as to the inferiority of the powder, and which recognized liability to plaintiff, it being stated therein that the material could be used when mixed with that of a higher quality, and fixing a definite time within which the balance of the order should be accepted and paid for. The preamble to the offer of compromise, duly approved, indicates the interest which defendant had in consummating the new agreement. It says, "recognizing the present stagnation in the tungsten trade, and in consideration of the following conditions, which are hereby mutually agreed upon, we agree to postpone (subject to modifications in condition 3) until May 1, 1922, the final date, before which all this metal must be accepted and paid for by you." No. 3 referred to the use of the plaintiff's powder in connection with another grade deemed necessary by defendant. Interest was made payable from January 1, 1921, upon the price of the product manufactured and held in storage for the purchaser.
No shipping orders were given by defendant prior to the date fixed, though demand for such action appears, and, after notice, the balance was sold at public auction. This suit was brought to recover damages for the loss sustained. The facts as above recited were set forth in plaintiff's statement, and in the reply to the affidavit of defense, later filed. Judgment was entered, on motion, for the amount claimed to be due, based on the difference between the sum received at the public sale and that contracted for. This appeal is taken from the order entered.
Defendant contended in the court below that the controlling legal principles must be determined by the law of New York, rather than Pennsylvania, since the contract was signed in the former state, though its place of performance was in the latter. This proposition is not raised in the statement of questions involved, nor was it argued before us. Clearly, such position could not be sustained. : Burnett v. P.R.R. Co., 176 Pa. 45, 48; Hughes v. P.R.R. Co., 202 Pa. 222; Musser v. Stauffer, 192 Pa. 398.
It is however, insisted that the supplemental contract of April 8, 1921, is ineffective to control the rights of the parties in this litigation, since there was no consideration for its execution, and that the first agreement is the one which must alone be considered. Therefore, appellant urges, no judgment should have been entered in view of its denial that the metal furnished was of the quality originally contracted for. The facts show the complaint made by defendant of the kind of product furnished, as well as an admission that it could be used when mixed with other substances, but causing alleged loss. There also appear default in giving shipping orders on its part, as well as in making payments due, and a desire to delay...
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