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WALDMAN v. SHOEMAKER (05/23/51)

May 23, 1951

WALDMAN
v.
SHOEMAKER, APPELLANT



Appeal, No. 96, Jan. T., 1951, from judgment of Court of Common Pleas of Lackawanna County, Jan. T., 1948, No. 528, in case of Joseph Waldman et al. v. Seth Shoemaker et al., trading as Abington Hills Farm. Judgment affirmed.

COUNSEL

Walter L. Hill, with him Willard M. Henkelman, and O'Malley, Harris, Harris & Warren, for appellants.

Edward T. Jordan, with him Joseph V. Phillips and Joseph E. Gallagher, for appellees.

Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 367 Pa. Page 588]

OPINION BY MR. JUSTICE BELL

Plaintiffs brought an action in assumpsit upon a written contract to recover $18,000. which they alleged defendants expressly and unequivocally contracted to pay them as soon as all the turkeys mentioned in the

[ 367 Pa. Page 589]

    agreement were sold. The defendants alleged that the parties entered into a joint business venture ; that the plaintiffs were to be paid $18,000. if the venture was a financial success; that unfortunately the venture resulted in a loss, and therefore no money was due the plaintiffs. The Court entered judgment on the pleadings in favor of the plaintiffs, and from this judgment defendants took this appeal.

A summary judgment will be entered only in a case that is clear and free from doubt: Kittaning Coal Co. v. Moore, 362 Pa. 128, 132, 66 A.2d 273; and the question therefore arises whether under the pleadings plaintiffs' right to recover the $18,000. is clear and free from doubt. In order to determine this we must examine the entire contract since it is well settled that in construing a contract the intention of the parties governs and that intention must be ascertained from the entire instrument: Robinson v. Stover, 320 Pa. 308, 314, 182 A. 145.

Plaintiffs are two individuals who operate food stores in New York City. Defendants are two individuals trading as Abington Hills Farm, who operate a turkey farm at Dalton, Pa. On April 4, 1945, plaintiffs and defendants entered into a written agreement. The agreement recites that the defendants intend shortly to purchase turkey eggs in order to hatch and market turkeys, and have requested plaintiffs to enter into a joint venture with respect to a portion of such turkeys. The agreement then states that the defendants intended to borrow $24,000. to be secured by a chattel mortgage on all of the turkeys to be owned by the defendants ; that the defendants would purchase and pay for a minimum of 30,000 turkey eggs, grow the turkeys therefrom, sell the turkeys and for such purpose furnish their farm, buildings, equipment, supplies, labor, machinery, technical knowledge, and all the necessary feed and foodstuffs, at their own expense ; and a similar provision with respect to an additional 30,000 turkey eggs if they were

[ 367 Pa. Page 590]

    able -- as they were -- so to do. Plaintiffs agreed to forth-with contribute and pay to defendants $18,000. Defendants agreed to sell all the 60,000 turkeys and "within thirty days after such sale or sales shall pay [to plaintiffs] a sum equivalent to one-half of the net profit or profits resulting from such sale or sales" of 6000 turkeys; and "Upon the sale of all of the turkeys... [ defendants] shall forthwith pay*fn* [to plaintiffs] the aforesaid sum of Eighteen Thousand ($18,000.00) Dollars." There then followed a provision giving plaintiffs an option to purchase 6,000 of said turkeys at OPA or New York market prices; and a provision (a) that ...


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