Sidney School Furniture Co. v. Warsaw Township School District

Opinion by

Mr. Justice Thompson,

The appellee, upon the 25th of July, 1885, entered into a contract in writing with appellant, for the furniture for eleven school houses, and agreed to pay $975 for the same. The appellant covenanted that the furniture should be made of “ seasoned material ” and “ give good satisfaction,” and be delivered on or about August 10th following. Upon a refusal by appellee to receive it this suit was brought to recover the price to be paid for the same.

The defence was that when the written contract was executed, a cotemporaneous parol agreement, which induced it, was also made, and was to the effect that appellant had furnished the furniture for two school houses, at DuBois and Coder; that if appellee upon examination of the furniture in them should find it unsatisfactory and defective, it would not be bound to take the furniture; and also that if when the furniture arrived it was not as good as the sample in every respect appellee would not be required to take it; that with this cotemporaneous parol agreement inducing it, the written contract was executed. That in pursuance of this parol agreement, examination having demonstrated the furniture in those school houses was defective and unsatisfactory, the appellee, by resolution, rescinded the contract and so notified the appellant. That after such notice appellant shipped the furniture and appellee refused to receive it.

It appears by the evidence that on the 28th of July several members of the school board visited the school houses in question and finding the furniture there defective and unsatisfactory the president authorized a telegram to be sent to appellant “ to take no action on our order until further orders.” On August 7th the school board met, and after a report, by resolution, rescinded appellant’s contract. Its president then sent the following telegram to appellant: “ Owing to misrepresentation of your agent, H. M. Sweet, we hereby annul our contract and notify you not to ship the furniture, as it will not be received.” The appellant in a letter acknowledged the receipt of this notice and stated that the furniture had been shipped on the 6th of August. But the proofs show that it was not in fact shipped .until the 8th of that month, within two days of the 10th, the time fixed- for shipment by the contract. It arrived at Brockwayville station between the 16th and 29th, and the appellant having refused to receive it and pay for it this suit was, within two days thereafter, brought.

The foundation of the defence rests upon the cotemporaneous parol agreement. As well settled by a line of cases, the proof of such parol agreement, without which the written contract would not have been executed, must be clear, precise and indubitable. The learned trial judge so instructed the jury. The verdict establishes and the evidence shows that this parol agreement was so established by proofs of a clear, precise and indubitable character. But it is contended that they should have been excluded because the minutes of the board were the only evidence of what took place at the meeting when the written contract was executed. The appellant offered the minutes of the meeting of July 28th to show authority for the execution of the written contract. For this purpose, and for no other, they were offered; and while so offered it cannot be held that they excluded proof of a cotemporaneous parol contract made by appellant. The fact that the minutes authorized the board to execute the written contract does not necessarily exclude evidence of a distinctive parol contract made at that time.

In School Directors v. McBride, 22 Pa. 215, where the court below instructed the jury that the minutes were the only evidence of the acts of the school board, and their acts could not be proved by parol, this court said in reversing: “ But the court below misunderstood the opinion in the case of School Directors v. Kline, decided at the last term. We said that school directors are a public body, bound to keep a record of their proceedings, and all their acts should appear on record, and this is true ; but this is not a declaration that their unrecorded acts are void. It indicates the duty of the directors to their constituents and not to those with whom they are contracting, —a duty the neglect of which may be of serious consequence to the district or to the directors themselves, but upon which contractors with the directors do not rely and by which they are not intended to be affected, and for the neglect of which they cannot object.”

It is manifest the parol agreement in question was then made by the appellant. If so the proofs are not to be excluded because the minutes do not contain a record of it in connection with that portion of them relative to the authority to execute the written contract. The minutes were .the evidence of the authority of the board to execute the latter; while the proofs of the former were to show that the appellant himself had made it with the board. The failure to make a minute of it cannot operate to destroy it.

The appellee having established the parol agreement, proved that several members of the board, in pursuance of it, examined the furniture in the two school houses and found it defective and unsatisfactory. In consequence of which the board on August 7th, by resolution, rescinded the written contract. It is, however, contended that the resolution which indicated the result of the action of the board should have been excluded because ex parte. But it was clearly admissible to show rescission in pursuance of the parol contract. Without such act there would have been no rescission. It was offered to show the act of rescission under the parol contract. It was passed as a basis of a notice of such rescission and was therefore competent. To hold otherwise would be to hold that a corporation could never rescind a contract by resolution without the presence of the other contracting party.

In pursuance of this resolution the president promptly, and before the furniture was shipped, sent notice of it to the appellant, and the telegram was received by appellant. Its sending was- a duty which devolved upon him in consequence of the resolution of rescission. It was not an attempt to do an act which the board itself could only do, but was one required to be done by him by the action of the board. The contention that he was incompetent to do this act because it lacked formal authorization of the board has no foundation in principle.

The furniture having arrived at Brockvvayville station it was examined by a number of witnesses who testified that the portions examined by them were defective, not made of sound material, and were of an inferior quality. The admission of this evidence is assigned for error upon the ground that appellee having elected to rescind it, waived any question as to quality. Without doubt when there is a refusal to receive the article before an actual inspection, or opportunity to judge of its quality or merits, in a suit for damages, no question in that regard can be made. The contract upon which this suit is brought provides that the furniture shall be made of “ seasoned material ” and “give satisfaction,” and, by the parol cotemporaneous agreement, be as good in every respect as the sample then produced. A vendee in case of fraudulent representations by vendor as to value, or in case of fraud, can elect, after discovery of the fraud, to affirm and recover damages, or rescind and recover back the price paid: Heastings v. McGee, 66 Pa. 386. But this is not a suit by a vendee, but by a vendor for the enforcement of a contract. The appellant, after notice of rescission, disregarding the same, shipped the furniture to, Brockwayville. As appellant thus elected to disregard the rescission it was clearly competent for appellee to show, under the position thus taken, that appellee was not bound to receive the furniture thus shipped, because it was not such as appellant had contracted to deliver'. The price was for one sum, and the furniture was to be one entire lot, all of which was to be of the quality and character contracted for. The contract was for a definite and fixed quantity of furniture and of a certain kind and quality. As the appellant claimed that it had actually delivered the given quantity of the definite quality, it was competent for the appellee to accept the issue thus tendered by appellant and prove that such was not the fact.-

The rejection of evidence that appellee before making a new contract for furniture, required a bond of indemnity against any damages that might be recovered by appellant from appellee which was offered for the purpose of showing that appellee in rescinding did not act in good faith, is made the ground for several assignments of error. The members of the board were performing a duty gratuitously, and, in the performance of it, without doubt natural^ sought to protect the board from all possible claims. The fact that they were thus performing their duty with the utmost good faith by seeking to provide for protection in^a possible contingency, cannot successfully be made the ground of inferring bad faith on the part of appellee. The rescission was made in good faith, and to suggest a suspicion as to it because out of extreme caution the board determined to exact a bond of indemnity would be manifestly unjust, and evidence for such purpose was clearly incompetent and properly rejected.

The appellant in support of his thirtieth assignment of error invokes the principle that incompetent evidence which tends to prejudice a party or impair the credibility of a witness is not deemed as effaced from the minds of the jury by its withdrawal then from their consideration. In this case, however, the evidence was withdrawn before the argument. It is manifest that it was withdrawn before the argument and could not have been the subject of discussion by counsel before the jury. Such the ease, it is difficult to see that it cast a taint upon the relevant testimony.

Judgment affirmed.