25 Pa. Super. 64 | Pa. Super. Ct. | 1904
Opinion by
The representation alleged to have been made by the plaintiff’s agent, that the performance of the service “ required but one horse and wagon and one driver,” is ambiguous. It may have referred to what the service required at the time the representation was made, in which case the falsity of it would seem to be negatived by the other averments of the affidavit to the effect that for a time the defendant was able to perform the service with one horse, wagon and driver. And,-even if it be construed to mean that the performance of the service for the whole period of the contract would require but one horse, wagon and driver, the representation would seem to amount to no more than an expression of opinion or a prediction, which, though mistaken, would not constitute a fraud for which the defendant could avoid his express contract to “ at all times keep on hand, and subject to the order of the party of the third part, a sufficient number of horses of the required quality and condition to perform the service at any and all times.” As the case must go to a jury trial we will not discuss this question further. It is sufficient for the present purpose to say that the allegations of the affidavit, without more, are insufficient to bring the case within the general rule that the false representation which will invalidate a contract must be of a material fact, known to be untrue by the party making it, or recklessly made without any sufficient ground for believing it to be true, or made by or on behalf of a party charged
Whether the contract constituted a “ subletting or transfer ” of the plaintiff’s contract with the government, within the meaning of the postal laws and regulations set forth in the affidavit of defense, and whether the defendant could defend his breach of the contract by proof that it was made without the consent of the postmaster general, are questions we are not required to decide at this time. The bare allegation that the plaintiff “ violated said postal laws and regulations when he sublet said contract to the defendant” leaves us in doubt whether the defendant relies on section 1296, quoted in the affidavit, or on section 1297. If on the latter, the fact that the plaintiff did not obtain the written consent of the postmaster general ought to have been plainly and unequivocally alleged and not left to inference.
It is claimed that the plaintiff is entitled to recover the difference between the sum which he would have received from the government if the defendant had carried out his contract and the sum which the plaintiff had obligated himself to pay the defendant. There would be plausibility in this contention if the plaintiff could not have performed the service required by his contract with the government at a profit, or could not relet the contract for a less sum than he was to receive from the government. Nor are we prepared to say that the averments of the statement are insufficient to sustain a claim for loss of profits. But without expressing a more decided opinion as to this element of the plaintiff’s damages, or upon the general question as to the measure of damages, we think it clear that he is not entitled to judgment for alleged loss of profits and the additional sum, $631.68, which he alleges he expended in securing the cancelation of his own contract with the government; this for the sufficient reason, if for no other, that it is explicitly and unequivocally denied in the affidavit of defense that his costs and expenses in obtaining such cancelation amounted to the sum alleged or any part thereof. This denial is specific enough to entitle the defendant to a jury trial, where, upon a fuller development of the facts, the proper measure of damages can be more intelligently determined,
Appeal dismissed at appellant’s costs without prejudice, etc.
