31 Pa. Super. 60 | Pa. Super. Ct. | 1906
Opinion by
The course of dealing of the parties shows clearly that they did not interpret their contract of October 13, 1902, to impose on the plaintiff the obligation to send orders for coal daily and to make payment for coal delivered on the twentieth of each month in compliance with an alleged custom. The quantity contracted for was fifty cars. Between October 13, and the 1st of the following December, twenty-four cars were ordered at various times and shipped. On the latter date the defendant wrote to the plaintiff that all orders received had been shipped, that twenty-six cars were yet to be forwarded and requesting shipping instructions. At the same time the plaintiff was asked to remit 1510.60 to apply on the account. The next day the defendant notified the plaintiff that C. Jutte & Co. had purchased the defendant’s mines and the plaintiff was referred to that company “ in reference to any orders or shipments.” There is no suggestion in the evidence that the defendant was at any time dissatisfied with the plaintiff’s performance of the contract, or considered that any of its terms had been violated by the letter.' The only excuse given for not delivering the remainder
If it were conceded, however, that the plaintiff was bound to give orders daily for coal and to pay according to a custom of the trade the conduct of the parties exhibits a mode of performance of the contract not in accordance with its .literal terms. If they understood the agreement to be as now contended for by the appellant they relaxed the strictness of its terms. No intention was manifested to hold the plaintiff to literal performance. Under such circumstances it is well established that a party cannot rescind without fair- notice of an intention to insist upon a literal compliance in the future. Having adopted a method of executing the agreement, apparently acceptable to the defendant, which put the plaintiff off his guard,, it would be manifestly unjust to permit the defendant to rescind the contract without warning the plaintiff of the necessity for strict performance. The acceptance by the defendant of the plaintiff’s orders as they were delivered and a request for further orders upon the same contract might easily induce the plaintiff to believe that daily orders and payment on the twentieth of the month were not considered essential by the defendant. A very short time, elapsed between the date when the defendant alleges the first payment should have been made on account of coal delivered and the time when the plaintiff was notified that the defendant had gone out of business. No other request for payment was made than that contained in the defendant’s letter of December 1st, and there is no intimation there that the amount was overdue or that the plaintiff had been remiss in making payment. Under such circumstances the defendant should not be permitted to declare a rescission of the contract. Forsyth v. North American Oil Co., 53 Pa. 168; Hazleton Coal Co. v. Buck Mt. Coal Co., 57 Pa. 301; Price v. Beach, 20 Pa. Superior Ct. 291; Portland Ice Co. v. Connor, 24 Pa.
The judgment is affirmed.