McKeefry v. United States Radiator Co.

31 Pa. Super. 263 | Pa. Super. Ct. | 1906

Opinion by

Orlady, J.,

On March 13, 1903, the defendant company gave the plaintiff an order in writing, as follows : “ Please forward to us at West Newton, via B. & O. two hundred (200) tons Seneca, at $21.00 per gross ton. Time of delivery; One car per week, July and August.” This was accepted, and filled in part by the delivery of carload lots of pig iron of the designated brand. The shipments began in August, and from the correspondence between the parties, it is quite apparent that the time of delivery of the subsequent shipments corresponded with the orders given by the defendant company. The market price of that grade of pig iron decreased from the date when the order was given, until the December following when the defendant conceled its order, and later the plaintiff sold in open market, at the rate of 113.00 per ton, the balance of the undelivered iron, which aggregated seventy-two tons.

This action was brought to recover the difference between the contract and market price, and the sole defense was that the contract was severable and not entire. The rule of the law, as laid down in Shinn v. Bodine, 60 Pa. 182, and followed in many later cases, is that the entirety of the contract depends upon the intention of the parties and not on the divisibility of the subject. The several nature of the latter may often assist in determining the intention, but will not overcome the intent to make an entire contract when that is shown; nor will the mode of measuring the price, as by the bushel, ton or pound, change the effect of the agreement, even in entire contracts, from agreeing to partial payments, pending the full performance, and that is what was done in this case: Easton v. Jones, 193 Pa. 149; Poland Ice Co. v. Connor, 24 Superior Ct. 493; Barnett v. Becker, 25 Superior Ct. 22.

A member of the plaintiff company testified that they manufactured the pig iron and that it was ready for shipment during July and the following months, until the contract was canceled. The reason for the change of the date when the material was delivered and the sufficiency of that proof raised questions of fact which could only be settled by the jury a.nd they were fully and fairly left to that tribunal. The defendant’s first and second points were fully covered in the general charge, and were properly refused, and we see nothing in the record to warrant another trial.

The assignments of error are overruled and the judgment is affirmed.