78 Pa. Super. 96 | Pa. Super. Ct. | 1921
Opinion by
The plaintiff declares its cause of action arose from tbe breach of an alleged contract entered into by it and the defendants. The sixth paragraph of the statement indicates the nature and terms of the contract on which the plaintiff relies: “6. By verbal communication between Oscar H. Campbell on behalf of the defendants and D. W. Meredith duly thereunto authorized by the plaintiff, the defendants did purchase from the plaintiff on or about July 8, 1920, ten tons of bran at $58.90 per ton and twenty tons of standard middlings at $62.40.” Had the statement stopped at that point we would be without information as to the times and terms of shipment and other essential matters. In the seventh paragraph of the statement, the plaintiff declares what further was done in order to make apparent those details of the alleged contract concerning which the sixth paragraph was silent. “7. Thereupon the plaintiff did send to the defendants its regular original and duplicate salés contract for the signature of the defendants in similar form, two true and correct copies thereof, hereto attached marked exhibits A and B and made part of this statement of plaintiff’s claim.” It appears to us to be a conclusion from which we cannot escape after reading the last quoted paragraph, that it was the understanding of the parties that a formal instrument in writing was to be executed before the contract could be considered in force. When we turn to the exhibits referred to in the paragraph quoted, we find that the time of shipment as therein stated was to be “soon as possible.” Now, the defendants replied to the plaintiff’s letter enclosing the confirmation contract of the alleged sale on July 17th. That letter among other things contains the following, to wit, “Has this car been shipped? Of course we expected same to be shipped at once on the prices as we can buy on Last half of July and 1st half Aug. at a less figure. Please let me hear from you etc.” On July 20th, the plaintiff replied to that letter and their reply contains
We are of the opinion that the learned judge below should have made absolute the rule for judgment in favor of the defendants non obstante veredicto.
The judgment is reversed and the record is remitted to the court below, with direction to make absolute the rule for judgment non obstante veredicto and to enter, a judgment for the defendants accordingly.