Bartoe v. Bixler Coal & Coke Co., Appeal, No. 121

Appeal, No. 121 | Pa. | Dec 31, 1920

Opinion by

Mr. Justice Moschzisker,

On April 27, 1916, it was agreed between defendant coal company and plaintiff dealer, that the former would furnish the latter his “entire requirements” of coal, “from date to April 1st, 1917,” other terms of sale, with which we are not now concerned, being set forth in the written contract. Plaintiff, alleging that defendant had refused to perform, brought an action for damages; the court below entered a nonsuit, which it declined to remove, and this appeal followed.

In support of the judgment appealed from, defendant contends that the contract in suit is too indefinite to be enforced — plaintiff’s “requirements” being neither fixed nor capable of establishment by any standard — and that it lacks mutuality; but, without passing upon these grounds (which, if correct, would be sufficient in themselves to sustain the nonsuit), and assuming, for present purposes, that the contract is valid and enforcible, plaintiff’s own testimony shows that he, himself, breached its obligations, during the summer months of 1916, by buying all of his coal requirements from companies other than defendant.

Plaintiff offered no evidence of waiver, nor did he show that defendant had any knowledge of these purchases from others. The breach of contract was fatal to plaintiff’s right of recovery, and, on this ground, the nonsuit was properly entered; therefore, it is unnecessary to discuss the other reasons given by the court below in support of its action.

The assignments of error are overruled and the judgment is affirmed.