Swing v. Walker , 1905 Pa. Super. LEXIS 68 ( 1905 )

Opinion by

Henderson, J.;

The plaintiffs’ action is based upon an alleged breach of contract for the installation of a steam heating apparatus. The defendants desired to install a heating system, and to that end caused plans and specifications to be prepared by their engineer, upon which bids were solicited. The specifications as prepared, it was discovered, involved a greater expense than the defendants cared to incur, and one of the plaintiffs, Bate-man, and one of the defendants, Walker, examined the specifications with a view to such changes as would reduce the cost. The changes made were noted on the specifications, and a copy of them as revised was taken away by the plaintiff Bate-man. It was claimed by the plaintiffs that in addition to the changes noted on the specifications, the defendants agreed to leave out the general clause concerning the bond to be given as provided for in the specifications. The plaintiffs afterwards submitted a bid for the work. Other bids were also received, but the plaintiffs’ was the lowest. Early in July of the same year, Mr. Bateman called at the defendants’ office and went over the plans again, or, to use his own language, “ over the entire work;” and changes were suggested which increased the price from $3,088 to $3,100. The plaintiffs allege that the defendants agreed upon the work and the price, and that Bateman promised that he would write a letter confirming the order stating the terms agreed upon; that a letter of confirmation was written the next day, and that the defendants refused to permit them to proceed and complete the work, but gave the contract to another firm.

Nine of the eleven assignments of error relate to the charge of the court and two to the rejection of evidence. The complaint is that the learned judge expressed an opinion in regard to the weight of the plaintiffs’ evidence; that it was not given due consideration, and that a part of the charge was delivered under a misapprehension in regard to the plaintiffs’ contention as to the execution of the contract.

It is not entirely clear from the plaintiffs’ evidence whether the contract alleged embraced the revised specifications presented by the defendants, or not. In answer to a question on cross-examination Mr. Bateman testified: “ We generally omitted the so-called general clauses in the fore part of the specifications, those referring to the bonds, and the general descriptive matter. They were ordinarily stricken out in their entirety. We paid no attention to those at all. In other words, the specifications were merely used as a guide in order that we might include the entire apparatus.”

In another part of his testimony, the same witness said: “ I took a copy of those specifications with me when I left Mr. Walker; prepared the bid, wrote it and mailed it, based on those specifications as revised and changed by Mr. Walker and myself.”

In the letter of confirmation written to the defendants, the plaintiffs said : “We will agree to install the system of heating, pipe work, etc., in accordance with the revised specifications of your engineer, of which we have a copy.” The letter of confirmation referred to tends strongly to show that it was not in the contemplation of the parties that the conclusion reached on July 10, was the contract on which the plaintiffs were to proceed. It was evidently intended that the undertaking, should be engaged in pursuant to a contract in writing. The plaintiffs proposed to be bound according to the terms of their letter of July 11, and the defendants received it with the understanding that an agreement in writing was necessary to express the understanding of the parties. The letter of July 11 was something more than an acceptance of the contract according to the revised specifications. It contained the plaintiffs’ interpretation of the requirements of the specifications, and the defendants could only be bound to that interpretation by their assent. Where one sues for damages for a breach of contract, the burden is on him to establish a clear case of something actually agreed to. Where a proposal is made on one side, and an acceptance is given on the other not according to the terms of the proposal, the parties are not hound : Slaymaker v. Irwin, 4 Wharton, 369. “ To constitute a contract the acceptance of the offer must be absolute and identical with the terms of the offer. If one offers another to do a definite thing, and that other person accepts conditionally, or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat, or it is in effect a counter proposal: ” Joseph v. Richardson, 2 Pa. Superior Ct. 208; Clements v. Bolster, 6 Pa. Superior Ct. 411. To bind the parties, an acceptance must be in exact co.nformity with the proposal. A qualified acceptance does not constitute a contract. The court submitted to the jury the question whether a contract had been executed by the parties, and in so' doing we think the case was as favorably presented as the evidence permitted. The jury was instructed that if they found there was a contract, the verdict should be for the plaintiffs, as there was no dispute that the defendants had not performed. Even on the plaintiffs’ theory, it was a material inquiry whether the defendants had waived the giving of a bond. The letter of confirmation referred to the plans and specifications. The plans and specifications required a bond. The plaintiffs allege that that provision was waived by the defendants. The jury was instructed that if the parties agreed that that provision of the specifications was immaterial, then there was no default by the plaintiffs in that respect. We find nothing in the charge which takes away from the jury the right to dispose of the case according to the evidence. The learned judge, it is true, made some comments on the mode in which the plaintiffs conducted their business, as shown by the evidence, which reflected on their business capacity ; but these comments were general in their character and. did not at all limit the action of the jury. Nor did his reference to the meager character of the •plaintiffs’ evidence. The remarks of the .court upon this subject were not reversible error: Halfman v. Penna. Boiler Insurance Co., 160 Pa. 202; Pool v. White, 175 Pa. 459; Jackson v. Pittsburg Times, 152 Pa. 406.

The ruling of the court on the, question presented in the first assignment of error was proper. The plaintiffs proposed to interrogate the defendant Walker on cross-examination “ Were you satisfied with the understanding which you had providing the specifications were put-in form without interlineations and alterations and the price inserted $8,100 ? I mean by that would you have given the contract?” The defendants allege that no contract was entered into; that the specifications were interlined and altered in many places, and that a new copy of the specifications as altered was to be made out as the basis for a contract. If that were the case, it was a matter of no consequence whether the defendants would have entered into a contract or not. An affirmative'answer to the question would not have tended to show that the contract had been in fact executed.

The offer to prove a conversation over the telephone was clearly inadmissible. The object of the evidence was to show admissions of Walker, one of the defendants. It appeared from the testimony of the witness, that he was not acquainted with Walker’s voice, and could not identify it. No discussion is-necessary to show that a declaration or admission is not admissible unless the party making it is identified as the person sought to be charged. The introduction of the telephone has not changed the rule of evidence on that subject. If the witness had been in the presence of the person at the other end of the line, the declarations of that person would not have been admissible without evidence that he was one of the defendants. There are numerous cases, as shown by the citations of the learned counsel for the plaintiffs, which make telephone communications competent under certain circumstances. They relate to communications by telephone from an office in response to communications or inquiries, and to the presumption which arises from the transaction of business by telephone from the place of business of the person in whose control the telephone is. None of them have any bearing upon the question at issue.

Taking the whole case into consideration, we are of the opinion that the jury was permitted to regard all the evidence, and that the verdict is attributable to the failure of the plaintiffs to clearly establish the execution of a contract, the breach of which was the ground of complaint.

We need not consider the exception to the charge of the court on the measure of damages in view of the verdict.

The judgment is affirmed.