80 Pa. Super. 162 | Pa. Super. Ct. | 1922
Opinion by
The plaintiff brought an action against the defendant to recover the price of a quantity of lumber alleged to have been contracted for by the defendant, the value of which exceeded $500. The statement of claim recites that the lumber was ordered verbally by telephone on October 13, 1920, and that the plaintiff sent the defendant a confirmation of the order in writing in which was set forth a description of the lumber. The defense presented was that the alleged contract was in parol for merchandise exceeding $500 in value and was therefore unenforceable because of the provisions of the Act of May 19, 1915, P. L. 543. The plaintiff’s reply to this objection was that the defendant, in a letter dated October 25, 1920, acknowledged the contract as expressed in the plaintiff’s
After the presentation of the plaintiff’s evidence the court granted a nonsuit on motion of the defendant, and subsequently refused to take, off the nonsuit. This action of the court is the subject of the appellant’s complaint. We have therefore the single question for consideration: Does the letter of the defendant, of October 25th, remove the case from the operation of the statute and subject the defendant to liability on a contract to purchase the lumber? It is conceded that up to the time when the defendant’s letter was written the plaintiff had not an enforceable contract; but it is contended that, taking that letter and the confirmation of the oral contract sent to the defendant, a memorandum in writing of the contract existed which bound the defendant. None of the lumber was shipped prior to defendant’s rescission of the order. The case depends therefore solely on the effect of the defendant’s letter above referred to. The letter of confirmation was in the following terms:
“George E. Lippincott Canada White Pine Successor to Canada Spruce Robert C. Lippincott Yellow Pine Timbers
537-539 Land Title Building Flooring Maple Flooring.
Wholesale Lumber
Philadelphia, October 13, 1920.
Howard M. Stringer, 8th and Diamond Sts., Philadelphia, Pa.
Gentlemen:—
All contracts are conditional upon strikes, fire, flood, inability to secure cars, and other causes beyond our control.
All quotations are subject to previous sale and market changes without notice.
All orders and contracts are taken subject to approval of the home office.
1-8 Car 13-6 x 2 1-2" Face B & Better Sap Flat Fig. at $86.00. 1-3 Car 13-16 x 2 1-2" Face No. 1 Common Flooring at $73.50. 4 to 5 M Ft. 1 1-16 x 2 1-2" Face No. 1 Common Flooring at $78.00. 2 to 3 M Ft. 11-16 x 2 1-2" Face B & Better Flat Fig. at $91.00.
The above prices are delivered Kensington Station, Pennsylvania Railroad. We understand you do not want same shipped before 30 days, and are advising mill accordingly.
All quotations made and orders accepted based on the present rate of freight, customer to pay any increase, also Government1 tax on freight bill.
Respectfully yours,
GEL: B Geo. E. Lippincott, Per G.”
The defendant’s letter was as follows:
“Howard L. Stringer Lumber 8th and Diamond Sts.,
Philadelphia, Pa., Oct. 25th, 1920.
Mr. George E. Lippincott, 537 Land Title Building, Philada.
Dear Sir: Confirming our conversation over telephone this morning. Please cancel order of Oct. 13th. for carload of Y. P. Flooring as per your acknowledgment which I am herewith returning.
My reason for cancelling, as explained to you is that I have sufficient Floo~‘ g on hand to last me for sometime, and do not feel that I should add this extra car to my stock when I am limited for shed room, and money.
Thanking you for your consideration, I am,
Yours very truly,
(signed) Howard L. Stringer.
Special Attention to Store and Factory Orders.”
We deem it1 unnecessary to enter into a consideration of the sufficiency of the evidence of the contract with respect to the description of the property. It will be seen that the description in the letter of confirmation is very different from that set up in the statement of claim. As the contract must speak for itself on t'he subject, it
There is the further objection that the contract is indefinite as to the price to be paid. Two items in the letter of confirmation are for one-third of a car each of lumber therein described, at $86 and $78.75, respectively. The last item is apparently 3,000 ft. at $91. The third item is for an indefinite quantity “A to 5 M. ft......@ $78.” Following the conclusion of the court in Franklin Sugar Refining Co. v. Howell, 274 Pa. 190, this would-be apparently on its face a statement of the price of one-third of a carload, as to the first two items and a lump sum as to the second and third items, and oral testimony would be necessary to apply it to a different quantity. The cases are many that the contract must be so definite that oral testimony is not required to explain it except that trade terms may be employed, general knowledge of which is presumed and must1 be so averred in the statement of claim.
A consideration of the whole case brings us to the conclusion that the action of the court was well taken.
The judgment is affirmed.