Holcomb & Hoke Manufacturing Co. v. Gamba ( 1922 )

Opinion by

Gawthrop, J.,

Plaintiff declared for installments due under a Written order, in form a conditional sale contract, for a popcorn machine, the deferred payments being secured by a promissory note. Both the order and the note were signed by defendant' wbo made an initial payment of $200 when the contract was signed and later paid one of the installments. The contract is subject to the approval of plaintiff. It contains in plain type in two places, one being immediately over defendant’s signature, the provision that “no agreement, representation or claim of any kind shall have any force unless contained in this order.” It also contains this provision: “Shipped to O. Malatesta, No. 3 South Street, Philadelphia, Pennsylvania.” Delivery to Malatesta is admitted. The affidavit of defense sets up, first, that the sale was to Malatesta; that defendant signed the order as her agent; and that the representative of plaintiff, who secured the order, was so notified by defendant when the order was signed; second, that the machine could only be operated by electric current; that the neighborhood in which Malatesta’s store is located is not supplied with electricity and her store is not wired for electricity; that defendant told plaintiff’s agent these facts and that plaintiff’s agent stated to defendant that his company would arrange with Philadelphia Electric Company to have current supplied to the premises occupied by Malatesta, so that she could wire her store and use the machine; that Philadelphia Electric Company would not supply current to the neighborhood and as a consequence the machine was of no use to defendant who had offered to return the machine to plaintiff. With the issue thus made up, if issue there was which could affect plaintiff’s case, the parties went to trial. Plaintiff proved all the averments of its statement. Defendant offered to prove that he was acting as agent for Malatesta when he signed the contract and that plaintiff’s agent knew it. He offered to prove also that plaintiff had bound itself to show that current was supplied to the premises in which the machine was t'o be used. Objections to these offers were sustained. The court directed a verdict for plaintiff. The first five assignments of error are to these rulings; the sixth is to the order of proof required by the trial judge; the seventh is to the binding instructions for plaintiff.

The objections referred to above were made and sustained by the trial judge on the theory that the contract being in writing spoke for itself. Lowry v. Roy, 238 Pa. 9, justifies the action. The rule applies especially where the contract contains a stipulation against agreements or representations not contained therein, and where the contract must be sent to an absent principal for acceptance. Tranter Mfg. Co. v. Blaney, 61 Pa. Superior Ct. 379, and Philadelphia & Gulf S. S. Co. v. Pechin, 61 Pa. Superior Ct. 401, rule this point. In t'he latter case, as here, the representations alleged were not of an existing fact, but were merely promissory. Evidence of a parol inducing contract is not admissible in a case where the writing contains a plain stipulation against parol agreements: Outcalt Adv. Co. v. Ritchey, 63 Pa. Superior Ct. 597.

Nor was there anything on the face of the contract indicating that defendant signed as an agent for a disclosed principal, or that he did not sign it on his own account. „ The mere direction that the machine be shipped to Malatesta is not notice to plaintiff that defendant was not buying the machine on his own account. In Abrams v. Musgrave, 12 Pa. 292, and Hopkins v. Mehaffy, 11 S. & R. 129, the fact of agency, as well as the intention to bind the principal, was apparent on the face of the instrument.

Under this view of the case, the fifth assignment becomes unimportant.

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