Wetherill Bros. v. Erwin , 1900 Pa. Super. LEXIS 231 ( 1900 )

Opinion by

Rice, P. J.,

1. The plaintiffs’ general price list for the year 1896, sent out to their customers, contained a clause stating that a rebate of one fourth cent per pound would be allowed on purchases of twelve tons or over of “pure white lead in oil,” but offered no rebate on purchases of “ dry white lead.” Their price list for the year 1897, after quoting the prices and stating the discounts that would be allowed, contained the clause, out of which this litigation has arisen: “ Conditions as heretofore.” The question whether the defendants were entitled to a rebate on purchases of “ dry white lead ” in 1897 would be a very simple one if the evidence upon the subject had closed here. It would have been the plain duty of the court to instruct the jury that the words, “ conditions as heretofore,” referred to the conditions expressed in the price list of 1896, and that under them a rebate could not be claimed on purchases of “ dry white lead.” But on January 20, 1896, the plaintiffs wrote to the defendants, in reply to a previous communication from the latter, evidently containing an order: “We would book your order for dry white lead at four and one half cents per pound, and on delivery during the year of a quantity equal to a carload would allowarebate onsameof one fourth centperpound. . . . Trusting we may be favored with your order,” etc. Itis to be noticed that this letter was not an acceptance of an offer previously made by the defendants, but an offer which called for a reply. Whether or not any written reply was made to it does not appear. Standing alone, it did not make a binding contract. Whether or not it was accepted, and the “dry white lead” shipped in 1896 was delivered pursuant to the contract thus made, depended upon the credit to be given to the oral testimony, and the inferences to be drawn therefrom by the jury. Undoubtedly they might have found the fact, but it would have been a clear usurpation of their functions for the court to assume it and base on this assumption binding instructions that the words, “ Conditions as heretofore,” in the price list of 1897, referred to the conditions expressed in the letter of January 20, 1896. If there was a contract in 1896 binding the plaintiffs to allow a rebate upon certain conditions, it may be assumed for present purposes that the words in the contract of 1897 referred to those conditions. If, however, there was no such contract, and the allowance of the rebate in the final settlement for the dry white lead delivered in 1896 was purely voluntary, the only reasonable construction of the words is, that they refer to the conditions expressed in the price list of 1896. “ When matters of fact, depending on oral testimony, are connected with and necessary to a proper understanding of the written evidence, the court is not bound to construe the latter as though it stood alone. An admixture of oral and written evidence draws the whole to the jury: Denison v. Wertz, 7 S. & R. 372; Sidwell v. Evans, 1 P. & W. 383; McGee v. Northumberland Bank, 5 W. 32;” Home B. & L. Assn. v. Kilpatrick, 140 Pa. 405; Organ Co. v. McManigal, 8 Pa. Superior Ct. 632. This was such a case. A knowledge of facts outside the writing itself was necessary to a proper understanding of the words, “conditions as heretofore,” and as these matters of fact depended on oral testimony there was no error in submitting the whole evidence to the jury under proper instructions as to the legal effect of the writing, if they found the facts as claimed by the defendants.

2. We are not convinced that the instructions complained of in the fifth and sixth assignments were erroneous. Of the numerous objections urged against them the only one that requires notice is that relating to the consideration. It must be conceded that the decisions of the courts of the several states upon the subject of the performance of an existing contract obligation as consideration for a new promise are not harmonious, as an examination of the cases cited in the opinion in Abbott v. Doane, 163 Mass. 433, and in the notes thereto in 34 L. R. A. 33, will show. But it seems to me unnecessary to go into a discussion of that question in the present case. The compromise, in good faith, of a doubtful right, is a sufficient consideration to support a promise. Here the contract was executory, it was ambiguous in its terms, and there was an honest difference of opinion, and a dispute between the parties as to the right of the defendants to a rebate on purchases of “ dry white lead.” The right was doubtful and disputed. We see no good reason in law or in morals why they might not mate an agreement that the dispute should he decided in the way described, nor why, if performance was made on the faith of the agreement, the defendants should not be bound by it. The questions of fact involved in this proposition including the questions as to the authority of the plaintiffs’ agent and their ratification of his act were for the jury; we discover no error in the ruling upon the question of law.

3. Nor can we say that in presenting the question the court gave undue prominence to the plaintiffs’ evidence bearing on it and not sufficient prominence to that of the defendants’.. We need not dwell on this assignment. The case does not come within the doctrine or the ruling of any of the cases cited in support of it. In this connection it seems not out of place to call attention to the remarks of Judge Wickham at the conclusion of his opinion in Walton v. Caldwell, 5 Pa. Superior Ct. 143, also to the eases cited in the opinion in McCord v. Whitacre, 8 Pa. Superior Ct. 277.

4. The defendants complain that in submitting the ease to the jury the court did not correctly state to them the respective contentions of the parties. But as he has not printed the pleadings we have no means of ascertaining whether this complaint is well founded or not, except by an examination of the evidence. This has failed to convince us that the court committed error in this regard. There was, it is true, an oversight in not calling the jury’s attention to the letter of January 20, 1896, when the court was stating in the first instance the position of the defendants as to the transactions of that year, and the evidence which tended to support them in the contention that there was a binding contract for the allowance of a rebate. This omission, however, was cured before the jury retired. The letter was read to them twice, and its bearing on the question was stated. The learned judge also told the jury that the defendants contended that the letter shows “ that it was part of the contract of 1896 that there should be this rebate, and thus being part of the contract of 1896 should also be included in that of 1897.” He stated the defendants’ position correctly, and construed as a whole the charge was not inadequate. That a judge does not make all the remarks of which the nature of the ease may admit is not invariably ground for reversal. If such were the rule few judgments would be affirmed, for there are few cases in which something in addition, that might have been appropriately said, could not be suggested.

Further or more particular discussion of the several assignments of error seems unnecessary. They are all overruled, and the judgment is affirmed.