264 Pa. 304 | Pa. | 1919
Opinion by
The decree brought up on this appeal is that the appellant, the defendant below, account to the appellee for profits which it realized on the sales of soda ash delivered to it by the appellee in pursuance of a written contract between them, dated October 15, 1915. It is as follows: “The Diamond Alkali Company (seller) hereby agrees to
The case was disposed of below on bill and answer, from which the learned chancellor found six facts, the third and fifth being the only ones material in considering the question before us. They are: “Third. The shipments of soda ash, pursuant to orders from defendant, were less than the minimum specified in the agreement.” “Fifth. Defendant purchased and plaintiff delivered soda ash which defendant did not use in its business as a manufacturer of explosives, and the excess quantity so obtained was sold by defendant at a profit.” The decree was made on this last finding, the court below
There is not a doubtful or ambiguous word in the contract, and its concluding clause is, “There are no understandings or agreements relative to this contract or its subject matter that are not fully expressed herein.” Notwithstanding this explicit declaration by the parties, the court below read into the contract, “Buyer’s entire requirements in its business as a manufacturer in 1916.” What the appellant’s business was at the time the contract was entered into cannot be gathered from it. As a matter of fact it was a manufacturing concern, and the requirements of its business as a manufacturer during 1916 may not have been 180 tons of soda ash a month; but whether they were or not, it was bound by the terms of its contract to take that quantity from the plaintiff. The latter furnished it less. The minimum and maximum quantities fixed in the contract were not merely probable estimates of the quantities which the appellant Avas to take, as was the case in Marx v. American Malting Company, 169 Fed. Bep. 582, one of the authorities relied upon by learned counsel for appellee, but were definitely fixed quantities which the appellant could demand and the appellee was required to deliver. The latter was bound to hold itself in readiness to make shipments ordered by the appellant under the contract, and it, in turn, was bound to receive from the appellee the minimum quantity contracted for: Dimmick v. ■ Banning, Cooper & Company, 256 Pa. 295. Though the appellant was so bound, it could not, under the lower court’s construction of the contract, resell any portion of the minimum quantity which it was required to take, if it found that the entire quantity was not actually required in its business. There is no averment in the bill that it had acted in bad faith, or even knew that its orders, when given, were in excess of its requirements.
The complaint of the appellee, sustained by the court below, is that the appellant perverted the contract in reselling what it was bound to take from the appellee. What terms in the contract did it pervert? What did it do that it was forbidden to do? To find the appellant guilty of “perversion” of the contract, as styled by the court below, words must be written into it, in the face of the clearly expressed intention of the parties to it that there were to be “no understandings or agreements relative to this contract or its subject matter that are not fully expressed herein.” Eeading of words into a contract was attempted in Highland Chemical Company v. Matthews, 76 N. Y. 145, where the contract provided that the plaintiff should supply the defendant with oil of vitrol for one year, “total amount to be called for during that time to be not more than ten thousand (10,000) or less than seven thousand (7,000) carboys.” The defendant called for the maximum quantity, which the plaintiff delivered the defendant claimed as a set-off the differ-failed to deliver. In a suit to recover for what had been ence between the market price and the contract price of what had not been delivered to him. The plaintiff there
The fourth, fifth, seventh and ninth assignments of error are sustained, the decree is reversed and the bill dismissed at the costs of the appellee.