53 Pa. 373 | Pa. | 1867
The opinion of the court was delivered, by
The 1st and 2d points of the defendant below were entitled to clear affirmative answers. They are,
“ 1. If the jury believe that all the terms of the contract were
“ 2. That either party in arranging the terms of a contract has the right to require that it be reduced to writing and signed before becoming obligatory, and in such case the contract does not become binding on either party unless reduced to writing and signed by him, or unless he refused to sign it when tendered to him by the other party.”
It is true the learned judge did affirm these points, hut with qualifications amounting to a substantial negation of them. The testimony shows that the plaintiff and defendant accidentally met at a restaurant or refreshment saloon, not on business, but accidentally, to procure refreshment. Several others were present, and the defendant being an extensive coal dealer, the conversation turned on the price of coal, and eventually the price at which it could be delivered per bushel at Cincinnati. The defendant alleged he could deliver it there at the price it was selling at Pittsburgh, at sixteen cents per bushel. The plaintiff, — the witness McKee thought, — bantered him about delivering coal there to him at that price, but the defendant said he could and would. Finney said he would take 100,000 bushels, and called for pen, ink and paper to write a contract. Brown said the barges to be used in transporting the coal were to be returned in good order, reasonable wear and tear excepted, and he must have $10 a day for each after a proper time had elapsed for the plaintiff to unload and return them. He further said the coal must be cash. The plaintiff said, “ Certainly,” and commenced writing a check, one of the plaintiff’s party handing him a stamp. Brown then remarked, “ Never mind that, I’ll have the .papers drawn up to-morrow.” The matter proceeded no further then, but on the next day or next hut one, the plaintiff with one or two of those who were of his party at the saloon, called on the defendant to consummate the writings, but disputes arising, the contract was never put in writing, and the plaintiff not long thereafter sued on the contract as complete at the first interview, and recovered $2000 damages.
After affirming, in general terms, the 1st point, the learned judge qualified the assent by saying, “ but if it is intended by the proposition, that when a contract or agreement is made on terms proposed at the time, but the adjustment of these terms in the contract and reducing them to writing is postponed till the next day and then neglected or refused to be done by either party, that in such a case the contract is not binding, I would answer in the negative.”
This was calculated to mislead the jury. It assumed the con
In substance the same thing is repeated in the answer to the 2d point — “ Either party,” said the learned judge, “ in making a contract, can make it conditional or dependent on being reduced to writing before becoming binding upon him, so that he may see its terms in a definite shape; but this must be a condition or one of the conditions of the contract itself or reservation on his part on entering into it.” Here again is a complete contract assumed, and the necessity for a reservation or condition to prevent it being binding as a contract. This assumes the question at issue by requiring reservations and conditions to prevent the contract
Judgment reversed, and a venire de novo awarded.