74 Pa. Super. 449 | Pa. Super. Ct. | 1920
Opinion by
By two written contracts that, for the purpose of this case, are identical in terms, the defendant agreed to sell
1. “The quantity specified herein may be taken in one or more deliveries but all must be prior to February 1, 1917.”
3. “In the event of a short crop of any of the items herein named, Lutz & Schramm Oo. may at their option fill pro rata all contract orders.”
The contracts were dated in August, 1916. The defendant delivered but two barrels of sauerkraut and refused to deliver any more, alleging a shortness of the cabbage crop as a justification for such refusal. In January, 1917, the plaintiff made a specific demand for the delivery of the remaining eighteen barrels covered by the contract and gave notice that, if they were not received by the first of February following, he would go into the open market and buy the same, charging the difference in price to the defendant. To that letter the defendant replied by calling the attention of the plaintiff to the clause of the contract we last quoted, declaring it exhibited the reason for not making the complete shipment called for by the contract. The plaintiff testified that in the month of February he purchased the eighteen barrels which the defendant had failed to deliver, at a price very considerably in advance of the contract price, and he brings this action to recover the amount of money he was thus compelled to expend by reason of the breach of his contract.
The evidence having been heard, the learned court below directed the jury to return a verdict for the plaintiff for a specific sum of money and upon the verdict thus rendered judgment was entered. This appeal followed.
There was evidence offered by the defendant tending to show that their factory was located in the City of San-dusky, Ohio. Their method of doing business was to
Did the evidence offered by the defendant, confined as it was to the product of two hundred acres of land of their own selection, bring the defendant within the exception of the clause of the contract we have quoted and thus relieve them of liability for further deliveries? The appellant earnestly so argues and relies, to a very considerable extent, on a case decided in the St. Louis Court of Appeals, to wit, Ryley-Wilson Grocery Co. v. Seymour Canning Co., reported in 108 Southwestern Reporter 628, construing a clause in a contract, in effect very much like the one before us. The following excerpts from the elaborate and learned opinion in that case will sufficiently indicate the viewpoint of the court: “The instruction given for defendant errs in confining the meaning of the expression ‘total failure or destruction of crop/ as used in the contract, to the crop in the vicinity of the cannery from which defendants expected to secure their supply of tomatoes. This limitation took no account of what plaintiff understood the expression to mean......These parties introduced an exception in case of a failure of the tomato crop over a territory left undefined. For this exception to come into play and excuse defendants from delivering the tomatoes as agreed, it was essential for the crop to fail over the territory intended by both parties; not merely the territory from which defendants expected to get their supply......The
In the case at bar we are of opinion the burden of proof was clearly on the defendant to produce evidence, which would support a fipding that the plaintiff knew or ought to have known their methods of doing business and that, the shortage of crop mentioned in the exception, was a shortage on about two hundred acres of territory adjacent to their plant, the product of which they had bought to enable them to fulfill their contract. We are unable to discover in the record any evidence at all that would permit the jury to find the existence of any knowledge on the part of the plaintiff that would bind him to the conclusion, that the condition under which the defendant company was to be relieved of liability had actually happened. Without such evidence they could not ask the jury to write into their contract an exemption from liability not imported by the language of the written contract. There was therefore nothing to submit to the jury on that branch of the defense and the learned trial judge was warranted in his conclusion that in that respect the defense had failed.
But, assuming there was a breach of the contract, the amount of damages recoverable by the plaintiff depended on a number of considerations which should have been resolved by the jury under proper instructions from the
In Darrah v. Kadison, 51 Pa. Superior Ct. 133, will be found a long line of cases, the authority of which cannot now be successfully challenged: “Where a case depends on oral testimony, such testimony must be submitted to the jury”: Lehigh Coal & Nav. Co. v. Evans, 176 Pa. 28. “In Lautner v. Kann, 184 Pa. 334, Mr. Justice Fell, speaking for the Supreme Court, said: ‘The credibility of a witness is for the jury, and they are not bound to accept his statements because he is unimpeached and uncontradicted by other witnesses. He may impeach and contradict himself on the witness stand, or the jury may believe that he is honestly mistaken. The question is for the jury and not for the court.’ ” To show there has been no departure from the rule declared in the cases referred to, we quote from the opinion of Mr. Justice Stewart in Canole v. Allen, 222 Pa. 156. In speaking of certain parol testimony, which apparently the trial judge had construed as establishing a particular fact, the learned justice says: “The fact that defendant offered nothing against it did not establish it as a matter of law for the court to so declare. It is nothing to the purpose to say that the result would not have been differ
We are thus driven to the conclusion the learned trial judge fell into error in directing the jury to find for the plaintiff in a specified amount of damages, and for this reason the judgment must be reversed and a new trial awarded.
Judgment reversed and a venire facias de novo awarded.