Siebrecht v. Stewart , 68 Pa. Super. 520 ( 1917 )

Opinion by

Williams, J.,

This was an action to recover for tlie breach of the following agreement to exchange automobiles: “The Stewart Automobile Company of Philadelphia. November 23, 1916. You are hereby authorized to enter my order for one roadster for which I agree to pay the sum of $1085 Plus extra charges if any freight to Philadelphia $35 Total $1120 Credit by allowance on Model No. 639 $960 Balance due upon delivery of car $160. It is mutually agreed that there are no promises, verbal understandings or agreements of any kind pertaining to this order not specified herein. Tires to be changed for tires on No. 639 Touring car now in use. This order when signed by the purchaser and accepted by the Stewart Automobile Co. shall thereupon become binding upon both parties and shall constitute the agreement between the parties for the purchase and sale of the property herein mentioned. (Signed) Fred J. Siebreeht Accepted Stewart Auto Co.” Plaintiff continued to use his car while awaiting the arrival of the new one, and after making a number of ineffectual attempts to get defendant to perform, brought this suit March 24, 1917. . He proved that his car was worth $600 when the contract was signed. Defendant sought to show that it was the understanding that plaintiff was to immediately deliver his car and then await the pleasure of defendant in the delivery of the new car; and that the mileage of plaintiff’s car had been increased from 1,200 to 5,600 miles, up to the time of the trial, in violation of this parol agreement. The court refused to admit this evidence, and gave binding instructions for plaintiff as to defendant’s liability under the contract, and left to the jury the amount of damage. From the judgment entered on the verdict the present appeal is taken.

Defendant’s assignments of error objecting to the admission and refusal of testimony, not being supported by exceptions, will not be considered. Those relating to alleged error in the charge, to which he excepted, raised but a single question. Did the agreement contemplate a mutual exchange and a simultaneous delivery of the cars ? We think so. “In the absence of anything to show a contrary intent on the part of the parties, a contract for the exchange of property must be performed on both sides concurrently”: 17 Cyc. 833. Plaintiff made several tenders of performance, was refused or evaded by defendant, and was entitled to recover under the contract. As there was no ambiguity in the contract, its construction Avas for the court: Kimbrough v. Hoffman, 6 Pa. Superior Ct. 60.

The judgment is affirmed.