180 Pa. 480 | Pa. | 1897
Opinion by
The plaintiff on May 13, 1892, sold to the defendant a “Triple Effect Yaryan Evaporater” for $7,000, one half thereof -to be paid on delivery, and the other half to be paid in three months thereafter. Certain work was done in connection with
Nine of the thirty specifications of error are based on excerpts from the charge, two on the refusal to affirm the defendant’s first and second points, one on the denial of the motion to amend the affidavit of defense, one on what the court said to the defendant’s counsel in regard to damages, and seventeen on rulings upon offers of evidence. Many of these offers were repetitions with slight and immaterial variations of previously rejected offers. The offers were to prove matters not specified in the affidavit of defense, and representations and promises alleged to have been made by the president of the plaintiff company some time prior to the making of the contract respecting the condition of the evaporator and the company’s willingness, in the event of a sale, to put it in perfect working order. The purpose was to add to and enlarge the terms of the written contract which was conceded, by the persons who represented their respective companies in making it, to clearly include and express the entire agreement between the parties. While the learned trial judge recognized and enforced the general rule that prior conversations between the parties are not admissible to vary the terms of a written contract he allowed the defendant to submit evidence in support of its claim that the plaintiff, when the contract was made, agreed to clean the evaporator and put it in the Chicago factory in perfect working order. The defendant was therefore permitted under the ruling of the court to introduce competent evidence in support of the claim on which its whole defense rested.
In denying the motion to amend the court said: “ The application to amend the affidavit of defense cannot be allowed for two reasons: (1) Under our rules of court an affidavit of defense cannot be amended or supplemented at the trial. (2) It is a radical change in some respects of the written contract and
Did the court err in refusing to affirm the defendant’s first point ? The point requested the court to hold that the plaintiff could not recover because the contract for the purchase of the evaporator was not signed by at least two of the managers of the defendant company as required by section 5 of the act of June 2, 1874. The question raised by the-refusal of the point must be considered and determined in the light of previous adjudications and the obvious and undisputed facts of the case in hand. The cases cited as sustaining this branch of the defendant’s contention are Reese v. The Pittsburg Melting Co., Limited, 118 Pa. 355 and Walker v. Brewing Co., 131 Pa. 546. The case first cited was an action of assumpsit for the recovery ,of damages for the breach of a verbal contract made by the • plaintiff with the chairman of the board of managers of the defendant company for the sale by the latter to the former of six hundred tierces of oleomargarine oil for $13,620. The plaintiff drew and sent his check for the amount but the company refused to deliver the oil. On the trial the plaintiff recovered a verdict against the company for $3,447, that being the difference between the prioe he was to pay for the oil and the market price of it at the time he should have received it. On appeal to this court the judgment entered on the verdict was reversed on the ground that it was not within the power of the chairman of the board of managers to bind the company by such a contract. Walker v. The Brewing Co. was an action of assumpsit in which the plaintiff offered to prove that the defendant’s architect and agent in the construction of its brewery building requested Mm to submit a bid for the asphalt work, that he dici so and that soon after the bid was submitted he was informed by the architect and by one of the managers that the defendant had accepted it and let the contract to him; that a contract and bond was presented to him which he signed, and that soon thereafter he was notified by the architect that the defendant had signed the contract, and that he should get his material and
In the case now under consideration the defendant company through its agent purchased of the plaintiff a machine that was essential to the proper prosecution of its business, and agreed to pay one half the price of the same on delivery and the other half in three months thereafter. The machine was delivered and the first payment made according to contract. It has been in the possession of and operated by the defendant as owner since September 1,1892. No officer or member of the company is shown or claimed to have objected to the purchase before, when, or since it was made. Presumably each and all of them approved and agreed to it. The company has affirmed the purchase by its acceptance and continued use of the machine ; by payment on account of it, and by its affidavit of defense and its offers of evidence. It plainly appears from its acts and from its attitude on the trial that it claims title to the machine by virtue of its agreement, and exemption from liability for the price because the agreement was not executed in accordance with the act of 1874. We think that the defendant is, upon its own showing and the admitted facts of the case, estopped from setting up the defense based on its first point. It cannot keep the machine and be justified in its refusal to pay for it. It cannot under the circumstances successfully urge its noncompliance with a requirement of the statute as a bar to the plaintiff’s just claim.
We have carefully examined and considered the rulings and instructions complained of, and are not convinced that they furnish adequate cause for reversing the judgment. We therefore overrule the specifications of error.
Judgment affirmed.