E. Frank Coe Co. v. Eichenberg , 1903 Pa. Super. LEXIS 205 ( 1903 )

Opinion by

Orlady, J.,

This action was brought on a book account for merchandise sold and delivered as specified by date and item in the plaintiff’s statement. The goods were received and used by the plaintiff who promised to make payment therefor. The only assignment of error pressed on our attention is the first, which alleges error in receiving in evidence two exhibits which were properly identified. The “ written contract ” mentioned was not in any sense a contract, but a mere order and agreement for the sale of fertilizers at the prices named therein in carload lots, without specifying any particular amount to be delivered thereunder. It was executed in duplicate and the defendant retained a copy thereof, and subsequently he gave an order for goods at the prices quoted therein. This paper was merely preliminary to the doing of business between the parties, and, standing alone, did not determine the liability of either party. It required a subsequent order for, .and delivery of goods to bring it into life, and its only value would be to limit the defendant’s liability to the prices designated. The suit was not brought on this paper; the defendant’s plea of surprise was properly overruled, as it was not supported by an affidavit; and the facts claimed as a reason for the motion were not sufficient to justify the court in granting a continuance. The real contract between the parties was the order for the goods, and as there was no defense offered, the court below properly directed a verdict for the plaintiff.

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