Appeal, No. 1, April Term, 1950, from judgment of Court of Common Pleas of Allegany County, January Term, 1944, No. 322, in case of William E. Fife v. The Great Atlantic & Pacific Tea Company.
Edward O. Spotts, Jr., John D. Meyer, Pittsburgh, for appellant.
William H. Eckert, Alexander Black, Jr., Milton W. Lamproplos, Smith, Buchanan & Ingersoll, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.
[ 166 Pa. Super. Page 78]
The facts are stated in the opinion by McNaugher, J., of the court below as follows:
The sole question before us is as to the measure of the damages to which the plaintiff is entitled.
Suit was brought upon a written contract under the terms of which the plaintiff, by the use of his own truck, was to haul merchandise of the defendant from its warehouses to designated retail stores in Pittsburgh and elsewhere. This contract, dated July 12, 1937, contained a ten-day cancellation clause as follows: "This contract and any renewal thereof, may be cancelled by either party by giving the other party ten days' notice in writing." The evidence offered in behalf of the plaintiff (directly contradicted by the defendant's evidence) was to the effect that the defendant refused to permit the plaintiff to haul any of its merchandise on and after October 13, 1937 and on October 15, 1937 informed him that he was through and that the hauling thereafter would be done by others. It was argued by counsel for the plaintiff, and the plaintiff's testimony as well as his pleading support the contention, that the defendant breached the contract on October 15, 1937. Paragraph seven of the statement of the claim is as follows: "On or about October 15, 1937, the defendant without cause refused to deliver the plaintiff any of the defendant's goods, wares and merchandise, for transportation, shipment and delivery under said contract, and orally informed the plaintiff, and other truckers in like situation with the plaintiff, that the contract "Exhibit A' and the defendant's similar contracts with other truckers in
[ 166 Pa. Super. Page 79]
like situation with the plaintiff, would not be performed by the defendant."
It is undisputed that the plaintiff did not do any hauling for the defendant after October 12, 1937, but, according to the defendant's evidence, that was because, as the plaintiff himself asserted in the trespass case growing out of the same general transaction (reported in 356 Pa. 265, 52 A.2d 24), the plaintiff, by a "reign of terror" staged by others, was "intimidated and prevented by fear of destruction of his ...