Hocking v. Hamilton , 158 Pa. 107 ( 1893 )

Opinion by

Mr. Justice Thompson,

Appellants rest their defence to this action, which was brought to recover damages for nonperformance of a contract and for the price of coal delivered, upon the grounds that the contract was not executed by appellants’ firm, that under it they were not bound to furnish cars to appellee, for shipment of coal, and that when suit was brought the cause of action had not accrued.

Appellants, on November 21, 1887, wrote to appellee as follows: “We are about consummating our arrangements for a supply of coal for the year 1888, and in looking over the field open to us wish to see the arrangements we can make. We have already been asked to consider a proposition from the largest West Virginia Coal Company, and there are several companies on the Creek that will be pleased to enter into arrangements with us, one to take its entire output, and the other to supply our requirements of coal. Besides, we are considering the advisability of opening up our Withers mine on Georgia Creek. Before concluding we wish to know if you are disposed to make a bona fide contract with us for 1888 for the entire output of your mine, we guaranteeing same to exceed quantity to be inquired to be taken out according to the present term of your lease and on which you have to pay royalty.” Subsequently, in pursuance of this letter, S. M. Hamilton, one of appellants’ firm, met appellee. At this meeting there were present other coal operators, with whom contracts were made to take their coal at seventy cents per ton; but appellee declined to make any contract unless the amount to be taken by appellants would be sufficient to provide for the royalty he was required to pay under his lease. Finally, after some negotiation, it was agreed substantially that appellee would sell fifty thousand tons for what would yield him sixty-eight cents per ton. A memorandum was taken to Baltimore, where the agreement was finally prepared, and signed by S. M. Hamilton and sent to appellee, who signed it. Although so signed by S. M. Hamilton it was in fact made for appellants’ firm. The referee so finds and the evidence clearly warrants his finding. The shipment of the coal to them, the manifests made in their name, the checks and their letters, demonstrate that such was the fact. S. M. Hamilton, acting for the firm, made the contract in question, and his act in so making it beyond doubt has been ratified and confirmed by the firm. The evidence justifies the master in finding that “ said firm ratified the said contract and accepted the terms and conditions thereof.” It was therefore the contract of appellants’ firm.

In Swisshelm v. Swissvale Laundry Co., 95 Pa. 370, it is said: “ Schoyer was acting as agent under parol authority, and his seal is surplusage, being in excess of his authority: Schmertz v. Shreeve, 12 P. F. Smith, 457. Having but a parol authority, had he signed his principal’s name, adding a seal, assumpsit would lie against the principal: Jones v. Horner, 10 P. F. Smith, 214. Where one accepts a deed containing an agreement on his part, but without affixing his signature and seal, he may be sued in assumpsit for a breach of it: Pratt v. Harding, 6 Casey, 525. On the undisputed facts no one is liable in covenant but Schoyer, and the defendant may be properly sued in assumpsit.” In Hall v. White, 123 Pa. 105, it is said: “ The articles of agreement upon their face are between the plaintiffs as vendors and the Mercer Mining and Manufacturing Company as vendee. If this were all there would be nothing to connect the defendant below with the contract. The jury have found, however, and upon abundant evidence, that the Mercer Mining and Manufacturing Company were but the agents of the defendant; that they negotiated the transaction for him, and that in pursuance thereof he entered into the land and made certain improvements thereon. Under such circumstances it is hornbook law that the vendors had a right to sue the principal for whose benefit the contract was made.”

As the present action is in assumpsit it may be said that even if this contract had been executed as contended, it has been so ratified and confirmed by appellants as to support this action. Assuredly, by reason of it, and of such ratification and confirmation, there was a mutuality as to remedies.

Appellants contend that even conceding the contract binding upon them, they are not liable because they were not required. to furnish appellee the cars for the shipment of the coal. Appellee sold to them his entire output of fifty thousand tons and covenanted not to sell to any other person or corporation, excepting, however, farm and other trade by delivery at the mines. It is not denied that he was ready and willing to deliver the coal there. But as cars were not furnished to him he did not do so. Appellants claim, however, that he was bound to furnish cars and to deliver coal upon them, and having failed to do so he was not entitled to recover in this action. The contract provides: “ It is agreed that the price to be paid to the party of the second part by party of the first part shall be for all good, clean merchantable coal free on board railroad cars at tipple, as follows, that is to say, in hoppers and gondolas, for run of mine coal, sixty-eight cents per ton of twenty-two hundred and forty pounds.” The point of delivery to defendants was to be upon the cars at the tipple; and the fact that settlement was to be made according to the weight at Sand Patch did not change it. This is emphasized by the covenant that appellee shall place on each car “ a weight of coal not less than the capacity as marked on said car.” After the delivery at that point the distribution of the cars necessarily passed to appellants. The appellee undertook to. sell and deliver at the tipple the coal at the designated price; and the appellants covenanted to receive it there and pay for it. If so, they were bound to furnish the cars for it, and the appellee was required to be ready and willing to deliver it there. As he was so prepared, and as the latter neglected and refused to receive it, they became liable in damages for the nonperformance of their contract.

In Kunkle v. Mitchell, 56 Pa. 100, it is said: “ The article of agreement between plaintiff and defendant is dated December 27, 1862, by which the defendant Mitchell agreed to deliver on the cars at Indiana 75,000 feet of lumber at eighty-five cents per 100 feet. This is the controlling clause as to the place of delivery. The cars would be either the cars of the plaintiff or those of the railroad company. In either case they were to be provided by the plaintiff and not by the defendant. The cars therefore being to be provided by the plaintiff, the duty was imposed upon him to see that he was at least ready with the cars or willing to provide them, and to have notified the defendant of such readiness and willingness.” And in Dwight v. Eckert, 117 Pa. 508, it is said: “ It is a well established principle of law that in a contract for the sale and delivery of goods ‘free on board vessel,’ the seller is under no obligation to act until the buyer names the ship to which the delivery is to be made.”

If this agreement was susceptible of a doubt in its construction in regard to appellants’ duty to furnish cars, the evidence of appellants’ actions clearly resolves such doubt against them. The appellee was therefore entitled to recover if at the time of bringing suit his right of action had accrued.

In appellee’s statement of his demand, after his claim for damages, he adds one for the delivery of 3,701 and a fraction tons of coal in December, 1888. It is contended that under the contract the payment for this coal was not due until after the suit was brought. The referee finds as a fact that the appellants notified appellee that in August, 1888, the contract was terminated, and this finding is sustained by the evidence. As the contract was thus terminated prior to the suit, the appellee’s right of action to recover not only damages, but the price of coal subsequently furnished, accrued.

In Campbell v. Gates, 10 Pa. 483, it was held that one party having by letter refused to go on with the performance of the contract, the right of action for damages then accrued to the other party. In Lovell v. Ins. Co., 111 U. S. 264, it is said by Mr. Justice Bradley: “Where one party to an executory contract prevents the performance of it, or puts it out of his own power to perform it, the other party may regard it as terminated and demand whatever damage he has sustained thereby.” And in Am. & Eng. Encyclopedia of Law, vol. 3, page 904, it is stated: “If before the time for the performance of a contract has arrived, one party announce to the other that he does not intend to perform his promise, the latter may treat the contract as broken and bring an action immediately against the former for the breach. It is not necessary that he should postpone his suit until the time for performance has arrived.”

As the contract was that of appellants, and as, by their refusal to- perform, appellee was entitled to recover, as the damages as found by the master were warranted by the evidence, and as the right of action had accrued at the time when the suit was brought, this judgment is affirmed.