196 Pa. 288 | Pa. | 1900
Opinion by
One William J. Donegan, on August 19, 1897, made a contract with William G. Patton, for the plumbing and gas fixtures of eighty houses in Philadelphia. The price to be paid was $14,400, twenty per cent of which was to be reserved and paid after the houses were finished and ready for sale or occupancy. The plans had been prepared by an architect, and were in possession of Patton when the contract was executed; they were made part of the contract, but still, it was stipulated, that Donegan was to do all that kind of work about which they were contracting, even if not specified in writing. This defendant, the National Surety Company, of New York, became surety for Donegan to the Equitable Trust Company of Philadelphia in the sum of $5,000 for the performance of the work according to the contract. After Donegan had done part of it, and there had been paid him $7,770, he abandoned the contract; the Equitable Trust Company called upon the surety company to complete it. At that date the Equitable had in its possession $3,750 cash and the twenty per cent reserved. The resident general agent of the National Surety Company in Philadelphia was G. H. Taylor, who, on learning of the default of Donegan, had a conversation with plaintiffs, who were gas fitters and plumbers, and the next day wrote them this letter:
*291 “9-10-98.
“ Messrs. Anderson & Adams,
“No. 128 So. 20th St.
“ Gentlemen: As per our conversation of yesterday, this is to authorize you to complete the contract of William J. Donegan, on the Patton operation, as per the terms of Mr. Donegan’s contract. Mr. Patton will see you and make arrangements for any extras which may be done, and which are not provided for in the contract. You may order the goods which are necessary to complete, and look to the National Surety Company for moneys which will be due you for same as the work progresses. If there is anything further which we can do for you in this matter, kindly call us up over ’phone or drop us a line, and we will be glad to take the matter up with you.
“Yours truly,
“G. H. Taylor.”
The plaintiffs immediately commenced, and in due time finished the work; payments were made to them from time to time by the Equitable Trust Company, on certificates, vouched by Patton and countersigned by the inspector of the company, the money being furnished through checks of the surety company, which last named company, in this way, paid to plaintiffs $8,556, leaving, as plaintiffs claimed, a balance of over $3,000 on their contract unpaid. The surety, alleging, then that it had paid all that its contract of suretyship for Donegan called for, and that it was only answerable to plaintiffs to the extent of Donegan’s default, refused to make further payments; thereupon, plaintiffs under their contract with the agent Taylor bought this suit against the surety 'company. At the trial the main contention, from the evidence, was, what was the contract ? The first line of the letter saj^s, “ as per our conversation of yesterday.” The plaintiffs allege that the actual contract was to be found in the conversation in connection with this letter; the defendant alleged that the whole contract was evidenced by the words following the expression quoted, in the letter ;■ and that meant plaintiffs were to finish Donegan’s contract in its exact terms, for the balance of consideration which by that contract was to be paid Donegan. The learned judge of the court below, being of opinion, that the letter did not
Most of these errors are disposed of by our ruling on the main contention between the parties. Was the contract between the parties wholly a written one? If so, error runs through the whole of the charge, and is also present in many of the rulings and offers of evidence. Or,' was it part oral and part in writing? If so, the charge is substantially correct. In general, if a written contract be exhibited, it is persumed to express the intention of the parties to it, and the whole of their intention; the oral negotiations which preceded it are presumed to be merged in the written contract, and evidence of the conversations which lead up to it are not admissible to contradict, vary, enlarge or restrict its terms ;' it is the duty of the court to ascertain from the written language the intent of the parties. But we are free to say this rule is not necessarily applicable here ; the very first duty of the court, on an inspection of the writing, was to say it might not, from its very terms, embody the whole contract. It starts off by saying: “ As per our conversation of yesterday,” you are to complete Donegan’s contract as per the terms of that contract. Regarding the “ conversation of yesterday,” it is testified by Anderson, one of plaintiffs, who had the conversation with Taylor, defendant’s agent, that on verbal request of Taylor, he and his partner, Adams, examined each of the eighty houses embraced in Donegan’s contract; three or four of them were finished; then, assuming the fact that the finished ones had been accepted, as a compliance with the first contract, they made a schedule of what work and materials would be necessary to complete all the unfinished houses, and estimated the charge they would make for completing the contract at $6,588. The written schedule and estimate he delivered to Taylor; the terms of payment were to- be cash as the work progressed. This last stipulation was not expressed in the paper further than the fixing the round price ;• the. price demanded seemed to be sat-' isfactory to ' Taylor, and Anderson left, Taylor saying he
As to the errors assigned, involving the court’s decision, that, on the established facts, Taylor had authority, as agent to write the letter, we only say the decision ought not to have been otherwise. Taylor admits he was the general agent of the company in Philadelphia, and held himself out as such with the knowledge of the company.;.solicited and negotiated
We can find nothing of merit in any of the assignments of error; all are overruled, and the judgment is affirmed.