264 Pa. 534 | Pa. | 1919
Lead Opinion
Opinion by
The facts of this case are not in dispute. The appellant was a licensed retail liquor dealer in the City of Pittsburgh; the appellee is a corporation having its principal office in Beaver County, engaged in the business indicated in its name. In organizing the brewing company in the year 1907 the scheme was to secure as subscribers to the capital stock, so far as practicable, persons engaged in the business of selling malt liquor, either by retail or wholesale, for very obvious reasons which will occur to any one. When the appellant was approached by the representatives of the company soliciting
The objection that the contract offends against public policy as declared in our statutes is without any greater merit. The public statutes regulating the granting of licenses to liquor dealers are inapplicable in this case; the facts show no transgression of any of them. Our attention is directed to Act of May 13, 1887, Sec. 5, P. L. 108, which requires that an application for a retail liquor license shall set forth under oath among other things— “that the applicant is the only person in any manner pecuniarily interested in the business asked to be licensed, and that no other person shall be in any manner pecuniarily interested therein during the continuance of the license.” This is cited as a statutory requirement transgressed, since by the contract the brewing company derived under it a pecuniary interest in the plaintiff’s retail business. This is a palpable non sequitur. As well say that every person from whom the plaintiff purchased supplies to replenish his stock, of whatever character, there
It is next argued that even though the contract was of binding force when entered into, yet, because the period of its operation so far as concerns the obligations of the appellant to purchase beer from the brewing company was indefinitive, without limitation as to time, it was terminable by either party on reasonable notice, and the plaintiff having chosen to terminate it after three years was no longer bound thereby. The court below held that the intention of the parties, if ascertainable, was to govern } that the intention here could safely be derived from the circumstances under which the parties contracted and the subject-matter of the agreement, and that having regarded to these the evident intention of the parties was that the agreement should continue in force so long as the plaintiff was engaged in the business of selling beer by retail, situated as he then was. The situation continued the same with respect to both parties until 1st November, 1914, when the plaintiff discontinued his business as a retailer of malt liquors. It was for the
In what we have said we have sufficiently discussed the several assignments of error. These are overruled and the judgment is affirmed.
Dissenting Opinion
Dissenting Opinion by
May 5, 1919:
It is conceded that the contract upon which defendant relies for its claim of set-off is of a dual character, one part containing an ordinary agreement of stock subscription, by which Nolle agrees to subscribe for twenty shares of stock in the defendant company, and the other part being as follows: “I do further agree to purchase ten barrels of beer per week, aggregating five hundred and twenty barrels per year. This agreement is conditioned upon the fact that the product delivered is of a quality equal to standard beers upon the market, and is sold at a rate not higher than that ruling in the open market at the time and dates of delivery.”
It seems to be conceded also that, if this was all there was in the case, Nolle’s obligation to purchase would have been, as the majority opinion expresses it “terminable by either party on reasonable notice”; and this is the rule repeatedly declared by us: Coffin v. Landis, 46 Pa. 426; McCullough, etc., Crucible Company v. Philadelphia Company, 223 Pa. 336; Turtle Creek Borough v. Pennsylvania Water Company, 243 Pa. 415; Bellevue Borough v. Ohio Valley Water Co., 245 Pa. 114; but it is said “that the intention here could safely be derived from the circumstances under which the parties contracted and the subject-matter of the agreement.” As those “circumstances” rest in parol, the fundamental question arises: What tribunal is to determine how far, if at all,
If it is still thought this court may itself determine the question at issue by considering the circumstances “under which the parties contracted and the subject-matter of the agreement,” the record discloses the former to be as follows:
The defendant was being organized as a brewing company, which wished to sell at least part of its capital stock to retailers who would agree to purchase part of its beer. Its subscription agent called upon plaintiff and asked him to subscribe to the stock. The only evidence of what occurred between them is as follows:
“Q. When you went to see Mr. Nolle, did you explain the purposes of this organization?
“A. Yes; we explained it to Mr. Nolle the same as to every retail liquor dealer that we went to see.
“Q. What did you tell him?
“A. We said to him that we were soliciting stockholders for this brewery, and only such dealers that held a retail license and wholesalers that sold malt liquors;*544 we did not solicit any stock from any one except they had a licensed.,plaee and would be willing to subscribe to a certain amount of beer. Mr. Nolle agreed to that, and we explained it thoroughly, the proposition, and he signed the application for stock.”
It will be noticed that nothing is said as to the time Nolle was to continue taking beer from defendant, or that the purpose of the organization was to have only venders of beer as stockholders (though it is said they were the only ones being solicited to purchase stock), or that only stockholders were to purchase defendant’s beer. The absence of anything to show that Nolle agreed to be bound for an indefinite length of time, is potent evidence that it was not intended he should be, for it would have been easy to say so had it been so intended. It is evident defendant wished its stockholders who were vendors of beer to be customers for some length of time, and Nolle was willing to agree to be so, but the question is, for what length of time? On that point both the contract and the evidence are absolutely silent, and there is nothing from which it can be concluded Nolle was to be bound beyond a reasonable time, which would cover the crucial period in the corporation’s existence, namely, when it was building up its trade. To assert anything more on the evidence here, is to make a contract, not to construe one.
In my judgment everything said and written is more compatible with a reasonable duration for the contract, than with an indefinite one, and therefore nothing in this record justifies a variance from the legal rule. The law of reasonable duration is in accordance with the principle that parties put all of their agreement into the writing, all prior conversations being merged therein; with the presumption that parties intend an equality of obligation, each being bound according to the same rule; with the presumption that certainty and not indefiniteness is intended, contracting parties being able to see what' they can do during a reasonable length of time, but not what
On the other hand, no reason is given why the term of plaintiff’s continuance in business should be adopted instead of defendant’s continuance in business, or plaintiff’s ownership of the stock, or all three combined, or the reasonable duration rule above set forth, any of which could just as well be “derived from the circumstances under which the parties contracted and the subject-matter of the agreement.” It is true the conclusion which limits the contract to the period while Nolle was in business at his then present location avoids some of the pitfalls which the opinion of the court below leaves open, but it suggests enough of its own to indicate the lack of safety in accepting it as a conclusion of law. As already quoted, it interprets the contract to mean it “should continue in force so long as plaintiff was engaged in the business of selling beer by retail, situated as it then was.” But why “situated as it then was”? Nothing in the contract or conversation implies it. Evidently the conclusion reached would appear too forced without that clause, for otherwise the contract might continue although Nolle sold beer in other places than Pittsburgh. With it in, could he have moved next door, or into the next street and have escaped liability? Or if not, how far away must he have moved to be rid of it? Or might he have ceased to sell beer at retail the day after the contract was made and have thereby avoided it, and could he have later started again without renewing it ? And is he at the mercy of defendant who may either sell or refuse to sell to him, as it chooses, he continuing bound until it
From those doubts and uncertainties one can safely turn to the rule of law above stated, for it is both certain and equitable, and perhaps is nowhere better expressed than by Lord Denman, in Apsden v. Austin, 5 Ad. & Ellis (n. s.) 671, quoted and followed by us in Coffin v. Landis, supra: “It will be found that where words of recital or reference manifest a clear intention that the parties should do certain acts, the courts have from them inferred a covenant to do such acts, and sustained actions of covenant for the nonperformance, as if the instruments had contained express covenants to perform them. But it is a manifest extension of that principle to hold that where parties have expressly covenanted to perform certain acts, they must be held to have impliedly covenanted for every act convenient or even necessary for the perfect performance of their express covenants. When parties have entered into written engagements with express stipulations, it is manifestly not desirable to extend them by any implications; the presumption being that, having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument. It is possible that each party to the present instrument may have contracted on the supposition
As already pointed out, in the present case we do not have even “words of recital or reference [which] manifest a clear [or any] intention” that Nolle should be bound for an indefinite period, yet the majority propose to bind him by doing here what we have repeatedly said could not be done. In my judgment the courts should never add a term to a written contract, especially one in antagonism to a general rule of law on the subject, unless the term to be added appears with certainty, as inevitably arising out of the contract, and as being the only term which could be added to make the contract reasonable and certain. Here, as above shown, the opposite conclusion is true.
I would, therefore, reverse the judgment, and award a new venire, that a jury might determine what would be a reasonable time, from and after August 13, 1910, during which Nolle should be held liable for his refusal to take the ten barrels a week as agreed upon.