*1 232

extension of time is not warranted then the order of the lower court dismissing charges and discharging the defendant shall be reinstated. remanded.

Reversed and

380 A.2d 463 CAMPBELL, Charles C. v. FARMS, INC., Appellant.

HOSTETTER Superior Pennsylvania. Court of 14,

Submitted March 1977. 2, Decided Dec. 1977. *2 appellant. Ronald J. for Hagarman, Gettysburg, Gates, York, appellee. Kent Samuel WATKINS, Before President Judge, JACOBS, HOFFMAN, CERCONE, PRICE, VAN VOORT, der SPAETH, JJ. VOORT, Judge: der

VAN This action arises on a complaint for a assumpsit failure pay bushels of soybeans sold and delivered to appellant and a counterclaim by appellant for the partial failure of appellee make deliveries on two contracts for the purchase corn, of wheat and respectively, and for the failure of appellee for an order pay of seed wheat. Appellant is dealer in with grains facilities Hanover, at Pennsylvania and is a farmer appellee who farms some 600 acres in the vicinity of Hanover. Appellee has obtained a judgment based upon verdict in his jury $7,500 favor for the sum approximates owing to him under the soy- bean contract after deducting his obligation to appellant for the seed wheat. The verdict has denied appellant any *3 recovery on its counterclaim for damages out growing of appellee’s shortfall in the of wheat delivery and corn. Ap- has pellant appealed from the refusal of the trial court to a new grant trial.

The facts concerning soybean and wheat seed transac- tions which form the basis judgment for appellee are 21, 1973, On undisputed. July the parties entered into an agreement evidenced by a written memorandum of purchase whereby to appellee agreed sell and appellant agreed to buy 1,000 bushel, bushels of at soybeans $7 to be delivery made October, in November and December of 1973. Appellee raised on 1,136% his farms and delivered bushels of soybeans within the agreed time but period appellant refused pay- ment because of its asserted counterclaim based on a short- age of deliveries under the wheat and corn contracts and an unpaid bill for seed wheat. Aside from its counterclaims, appellant concedes its to obligation pay for the soybeans.

It is likewise undisputed that appellee purchased 65 bush- of els Arthur seed wheat in the spring 1973 for which he was billed appropriately but that the bill had $520 not been

235 $7,500 owing reflects the balance verdict The paid. to obligation deducting after soybeans for to appellee wheat. for seed appellant parties between the as to is partial agreement

There on contracts which appellant wheat and corn terms of 7, agree May The that parties its counterclaim. bases an for the sale appel- into 1973, agreement entered they 3,000 of No. bushels by appellant the purchase lee and bushel, delivery to be made June and at wheat $2.15 a written signed that memoran- they that year July that parties agreed appel- The likewise that effect. dum to of wheat for which he was 1,534.88 bushels lee delivered 1,465.- to deliver remaining but that he failed fully paid are in as whether parties disagreement The 12 bushels. unanticipat- was excusable because of the failure to deliver damages conditions. claims ed, farming Appellant abnormal appellee liability. denies $1,814.36 but 8, 1973, that on agree May appellee further The parties of No. 2 buy to sell and bushels agreed appellant bushel, delivery to be made per corn at yellow $1.70 this year November of that and that October and a written memorandum. They agree also evidenced was 10,417.77 paid and was bushels of delivered appellee he corn but that failed deliver balance of yellow 9,582.23 $11,- for which claims damages bushels appellant Again, agree 977.79. do on whether the parties was excusable or on the non-delivery appellee’s liability damages. to excuse his sought non-delivery wheat

Appellee *4 that an wet season had in a unduly corn evidence resulted by wheat and an to crop inability plant failure of his partial of wet acreage ground. normal corn because Appellant that testimony appellee crop not dispute does were below appellee’s acreage significantly on normal yields contends, however, wet It unusually because an season. 3,000 obligation that contractual was to deliver appellee’s 20,000 No. bushels of No. 2 wheat and bushels of 2 corn regard without to the from source which such products were obtained.

The that as a parties agree to preliminary the sales they contracts met discussed the number of acres that to in both appellee planned plant wheat and corn and were agreement in on the be yield anticipated acre, per out a which came calculation of acreage multiplied by yield per in acre resulted the number of bushels stated in the of purchase signed memoranda both at by parties the conclu- sion of their discussions.

The agreements sales which grew out of these discussions were confirmed so-called memoranda of purchase written aon form printed supplied by appellant. The memoranda are each a single page length and were completed by appellant who inserted in the blank lines the commodity being purchased, the quantity, and the price time of The delivery. quantity of wheat was expressed 3,000 as bushels and corn as bushels. Nothing was said about the source of the commodities being farms of As to excuse appellee. for there non-delivery is printed at the foot of each language memoranda stating— “We do not accept any liability, save for our if negligence, not commodity does arrive according to billing instruc- tions. We do accept not liability shipping delays strikes, embargoes, account shortages car or other conditions our beyond control.” this printed portion If of the memoranda of purchase was intended to be to these applicable transactions it was for the seller, appellee, benefit of because the abnormal condi- seller, tions relate to acts buyer.

While the are in parties the bushels were calculated purchased by estimating the probable yield farms, appellee’s they are disagreement as what was intended of purchase. memoranda Appellant inter- them as prets calling bushels without regard to where reads the Appellee obtained. memoranda in the light of the preceded conversations which them and interprets the agree- farms, yield ments to call for the from his the bushels named

237 estimates of determined being jointly in the memoranda non-delivery that his was argues then Appellee yields. those was made impracticable by performance because excused conditions to crop contrary of weather and occurrence the the were made. agreements on which assumption the basic meaning of the explain to the right Appellee justifies preceded which the conversations light in the of contracts the Uniform 2-202(a) upon reliance Section by them He Code, non-delivery by 12A excuses P.S. Commercial the same 2-615 of Code. reliance Section upon to inter right jury the of the Appellant challenges of dealings of the course light the pret agreements (1) them, that the memoranda contending: which preceded to permit too clear and unambiguous are agreements meaning parties; of the intended parol evidence considered, is to be its negotiating background that if the (2) is to be agreements of the deter upon meaning effect latter was jury. court and not the The issue by mined either during to the court below course of presented the trial enumeration to court appellant’s the trial or court the issue a new trial. The left to the its reasons for challenged: which were not instructions as of the reads follows: 2-202 Code Section which the memo- respect confirmatory “Terms with to otherwise set forth randa of the or are parties agree expression as a final parties in a intended writing by terms with such as are agreement respect of their evidence of may by included therein not be contradicted oral prior contemporaneous agree- or of a any explained supplemented ment or may but (Section or of trade “(a) dealing usage course by (Section 2-208); 1-205) performance course terms “(b) evidence of consistent additional unless have intended finds the been also as writing court terms and exclusive statement of the complete added) (Emphasis agreement.” reliance is Appellant’s (a) upon subsection which authorizes parol explain evidence course term dealing. This is *6 in defined 1-205 the Section of Code as follows: “(1) A course of is a dealing of sequence previous con- the duct between to a parties particular transaction which fairly regarded is to be as a establishing common basis of understanding their and interpreting expressions other conduct.

“(3) A of dealing course between parties any and usage of trade in the or in vocation trade which they are engaged or which they of are or should be give aware particular meaning and or supplement qualify terms of agreement. an

“(4) The of express terms an agreement applica- and an course of dealing usage ble or of trade shall be construed other; wherever reasonable as consistent with each but when such construction is unreasonable express terms control both course of and dealing usage of trade and of dealing usage course controls of trade.” it a We conclude that is not prerequisite to the admissibili- ty testimony of Section 2-202 of the Code that the of the wording contracts be It is be ambiguous. noted there is such that no in the of requirement wording the statute and interpretation this is reiterated in the official section the comment the Commissioners on Uniform Laws State who drafted the legislation. They state in their comment— official

“1. This definitely section rejects: “(c) The requirement that condition precedent to the the of admissibility of evidence in type specified para- (a) is an graph original determination the court that used language ambiguous. is “2. (a) Paragraph makes admissible evidence course usage and dealing, trade course of performance to the terms explain supplement any writing stating order, that the true under- parties as agreement may to the parties standing on the assumption are to be read writings Such reached. and between dealings parties the course of prior granted were when trade taken usages carefully negated they Unless phrased. was document of the used meaning element of the words have become an in the Code general philosophy said of the It is P.S., XXXVII- pages 12A commentary appears VIII— and in a considerable principles

“Both in its generalized to free there is an effort the practices of its detail amount legalisms truly establish of merchants from overriding principle The functional law merchant. *7 faith, of fair good theme is that repeated the constantly Custom, usag- trade and commercial reasonableness. play are accentuated to them a dealing give es and course of effect. These fundamentals the express more pronounced the law and business and objective reuniting dual of changed them in under circumstances.” keeping step is of the that the interpretation Neither it a correct Code must determine the effect of such jury court rather than a meaning of the No such upon the contract. testimony 2-202(a) in or 1-205(1), is found Section Section requirement (3). distinction, if a is in a way usage trade imbedded

By trade or similar the writing interpretation written code (Section for the Like- 1-205). would be court writing terms wise, evidence of consistent additional be exclud- may if it determines that written contract ed court by exclusive complete as a and statement of had been intended We are (Section 2-202(b)). not concerned usage adding with a written Code or or additional terms to a We with the simply dealing proffered expla- contract. are 20,000 of wheat and bushels of corn nation bushels was a shorthand estimated way stating yield farms. appellee’s

If the contract was intended to apply the estimat farms, yield appellee’s partial ed his failure of delivery under 2-615 of was excusable Section the Code if the that the shortfall in deliveries found resulted from unseason wet to the basic ably contrary assumption weather on which- were made. the contracts Section 2-615 of the pro Code as vides follows: far seller

“Except so as a have assumed a may greater to the obligation subject preceding and section on substitut- performance: ed in or

(a) Delay delivery non-delivery in whole or in part a with complies paragraphs (b) (c) seller who is not a breach his a duty contract for sale if performance as has been impracticable made agreed the occurrence of a contingency non-occurrence of which was basic assumption the con- or tract was made by compliance good faith with or any applicable foreign domestic governmental reg- whether ulation order or not it later proves invalid.

(b) Where causes mentioned in paragraph (a) affect part only perform, seller’s he capacity must allocate production deliveries among his at may option customers but include cus- regular tomers thén under well contract as as his own for further requirements manufacture. He may so allocate manner which is any fair and reasonable. *8 The seller the- (c) notify buyer must seasonably that there

will or delay be bill read non-delivery [Enrolled ‘on’.] and, when is allocation required (b), paragraph quota of the estimated thus made available for the buyer.”

Furthermore it is in the stated Commissioners’note 9 to this section:

“9. The case of a farmer who has contracted to sell crops grown to be on land designated bemay regarded as either within the falling section to casualty identified section, excused, this and he goods may there when the either on the basis of crop, the specific is a failure of the failure of or because goods identified destruction of the contract.” assumption a basic with respect to this effect evidence introduced Appellee farms. He testified that on his and corn yields wheat both his to deliver and inability appellant notice to gave he to feed to his own stock. of corn bushels kept that he irrelevant, but such was testimony contended Appellant it. The court left it to challenge not otherwise did and given seasonably had been whether notice determine own needs was appellee’s of corn to allocation whether the (c) 2-615(b), allocation. See Section equitable an Code. us, the charge before challenge, does not

The appellant inter- accepted appellee’s and large The jury by the jury. of weather testimony of the agreements pretation performance impossible. complete which made conditions we find no basis for were entitled to do and This they trial. a new awarding y. for n. o. judgment filed a motion

The appellant the defendant reserved a is whether The record unclear It to us that no such appears instructions. binding point therefore consideration of was filed and that motion timely v., n. cannot be con properly o. judgment a motion in his brief Moreover, argue does appellant sidered. n. o. v. For these motion for any judgment concerning motion. reasons, we will not consider such Affirmed. in which

SPAETH, J., JACOBS concurring opinion files HOFFMAN, JJ., join. concurring: SPAETH, Judge, but I find by majority, the result reached

I with agree from those discussed issues different presented majority. (buyer) not deliver to (seller) appellant did

Appellee contracts; in the written he did of grain specified amount *9 242

not because wet weather and other circumstances prevented him from growing enough grain deliver the specified However, amount. to oral pointing negotiations, appellee reads the contracts as calling only delivery of whatever of grain grew. Appellant amount he reads the contracts as amount of requiring delivery specified grain, from whatever source.

Appellant argues parol that evidence of the oral negotia- tions should not have I been admitted. As read appellant’s brief, its It argument is this: was error for the trial judge decided, himself, not to have whether the contracts were intended to be the and exclusive “complete statement of the terms of the agreement,” Code, Uniform Commercial Act of 2, 1959, 1023, 2, Oct. P.L. 12A 2-202(b). P.S. If the § § had decided that the judge contracts were a complete and statement, exclusive no evidence of “consistent parol addi- tional terms” have would been admissible. of mak- Instead decision, this left it ing judge to the jury. so,

I with the agree even majority parol evidence of course of dealing usage of trade could have been admitted under 2-202(a). However, Uniform Commercial Code § appellee Indeed, introduced no such evidence. has appellee never I 2-202(a). invoked therefore cannot join the ma- § jority’s justifies statement that “[ajppellee to ex- right plain meaning the contracts in the light of the conversations which them preceded by reliance upon Section 2-202(a) . . . .” at Majority Opinion 237. appel- Since lee has never 2-202(a), invoked a decision § trial that the judge written contracts were a complete and exclu- sive statement would have sufficed to bar any evi- parol of the oral negotiations. dence Appellant is correct that this decision was for the judge, not the jury: 2-202(b) written terms may § “unless the court supplemented finds the writing have been intended also as a and exclusive complete statement of the terms of the agreement” (emphasis supplied). However, has waived this appellant argument, for he never made it below, allowing instead decide the I question. *10 with the lower agree court there was ample evidence in support verdict. jury’s HOFFMAN, JJ., join

JACOBS in this opinion.

380 A.2d 468 SCHWOYER, Appellant, M. Beulah

v. Frederick M. FENSTERMACHER and Janet L.

Fenstermacher, his wife. Frederick M. FENSTERMACHER and Janet L.

Fenstermacher, his wife

v. SCHWOYER, Appellant.

Beulah M. Superior Pennsylvania. Court of 2, April

Submitted 1976. 2,

Decided Dec. 1977.