Briggs v. Logan Iron & Steel Co. , 276 Pa. 326 ( 1923 )

Opinion by

Mr. Justice Simpson,

Plaintiffs sued to recover damages for the breach of an oral agreement, whereby they contracted to sell and defendant to buy a quantity of manufactured iron, on specified terms. Attached to the statement of claim were certain letters,, severally written by each party, regarding the contract. Defendant filed an affidavit of defense, raising two questions of law: (1st) Was a contract actually made? and (2d) If so, was it enforceable under the fourth section of the Sales Act?

The court below did not consider the alleged oral agreement or the effect of the statute, but' held that the letters, attached to the statement, showed there was not a completed contract, and entered judgment for defendant; from this plaintiffs appeal. In testing the right to this summary judgment, a court’s only duty is to determine “whether upon the facts averred [the statement of claim] shows, as a question of law, that plaintiff is not entitled to recover”: Rhodes v. Terheyden, 272 Pa. 397; Franklin Sugar Refining Co. v. Lykens Mercantile Co., 274 Pa. 206. Thus viewed, it is clear the judgment must be reversed.

The fundamental error of the court below was in treating the case as if the contract was alleged to have been made by the confirmatory letters. The statement of claim avers, however, that the agreement was oral; upon this plaintiffs must stand or fall; and by it alone, at this stage of the proceedings, their case must he judged. If the minds of the parties met in an oral agreement, it is a matter of indifference whether or not one or each desired later to change it, — runless the other party assented thereto, which is not averred, — or to have it reduced to writing and duly signed.^ Neither party to a completed contract can add to, subtract from, rescind or abandon it, without the consent of the other; if he attempts to do so, he makes himself liable, to that other, for any resulting damage.

It necessarily follows, so far as concerns the first question raised, that we need only consider, at the present time, what the statement avers regarding the oral contract, which is alleged to be the basis of the claim. In doing this, we find in it a clear averment of a completed agreement. For the reasons already stated, we cannot rule, as a matter of law, that the attached letters show there was no contract. If at the trial plaintiffs satisfy the jury that, as alleged, they agreed to sell and defendant to purchase certain specified iron at a stated price, shipments to be made by a given date, the place of delivery to be at defendant’s plant at Burnham, Pa., and that defendant wrongfully breached this contract, they will be entitled to recover whatever damages they suffered, unless prevented by the 4th section of the Sales Act, which requires, in a contract of this amount, that there must be “some note or memorandum in writing of the contract or sale signed by the party to be charged or his agent in that behalf.”

We held in Mason-Heflin Coal Co. v. Currie, 270 Pa. 221, and in Franklin Sugar Refining Co. v. Howell, 274 Pa. 190,, that all the facts, necessary to show a compliance with the requirements of that section, must be averred in the statement of claim. This we think sufficiently appears here; for plaintiffs’ letter, signed by them, quotes the oral agreement, as averred; and defendant’s letter, signed by-its treasurer, encloses a copy of plaintiffs’ letter, and also states the terms of the contract. For the reasons hereinbefore, set forth, the additional matter in these letters is unimportant at this time; their ultimate effect can only be determined at the close of the- trial.

The judgment of the court below is reversed and a procedendo awarded.