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MCMINN v. MAMMONE (07/19/51)

July 19, 1951

MCMINN
v.
MAMMONE



COUNSEL

Leonard L. Ewing, Reed, Ewing & Ray, Beaver, for appellant.

Swaney & Whitmire, Lee E. Whitmire, Jr., of Beaver Falls, Frank E. Reed, Beaver, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 169 Pa. Super. Page 2]

HIRT, Judge.

Plaintiff is engaged in the business of supplying and installing heating equipment. This action was brought by him to recover damages for loss of profits on a contract with defendant which the defendant refused to allow him to perform. The jury found for the plaintiff.

In the light of the verdict these facts appear: following informal negotiations, plaintiff inspected two buildings owned by the defendant and was there informed by him as to specific changes which he contemplated in his heating systems. Plaintiff thereupon, as requested, addressed a written proposal to the defendant, under date of July 9, 1949, offering to install a 'No. 5-W-30 National Gas Hot Water Boiler' in one of the buildings and a 'No. 10-S-40 National Gas Steam Boiler' in the other. In addition plaintiff proposed to supply and connect a '1 1/2 B & G Circulating Pump' with one of the boilers and to install three radiators, as well as perform other work incidental

[ 169 Pa. Super. Page 3]

    to the installations as specified in the proposal. The price for complete performance, as stated, was $1,775 payable 'Three Hundred dollars with order and balance when completed'. The proposal was signed by the plaintiff in defendant's place of business on July 9, 1949, and was then and there accepted by the defendant in writing over his signature. Defendant at his request was given until two days later to make the initial payment of $300. No payment was ever made and when plaintiff sent his workmen to the premises to make the installations, defendant refused to admit them. On sufficient evidence properly submitted the jury found in favor of the plaintiff in the sum of $414.40.

Defendant in his pleading of New Matter in effect claimed that he attached his signature to the proposal made by the plaintiff under the notation 'Accepted: July 9, 1949', with the contemporaneous oral understanding that the paper was not intended to constitute a contract, binding on the parties, until the happening of a future event, to-wit: the further perusal of the offer by defendant with his son, and the final approval of it by defendant thereafter within a reasonable time. At the trial the court sustained plaintiff's objection to defendant's offers of proof in support of the above contention; and in submitting the case to the jury the court charged, as a matter of law, that a binding contract was entered into between the parties by defendant's acceptance of the plaintiff's proposal, and the only question for the jury was the amount of plaintiff's loss of profits, resulting from defendant's repudiation of his agreement. After verdict the court however granted a new trial in an order which became appealable because of this statement incorporated in it: '* * * and we further certify that we would not grant any new trial except for the fact that we feel we committed trial error in refusing to permit the defendant

[ 169 Pa. Super. Page 4]

    to develop by cross examination of the plaintiff, and by his own testimony, the fact that the writing which appears on its face to be a complete contract never did, in fact, become a contract binding on the parties'. There is error in the order of a new trial. The court was right in its construction of the instrument at the trial of the case and wrong in awarding a new trial on a change of view.

The modern Pennsylvania rule, applicable to parol evidence affecting written instruments was given form in Gianni v. R. Russell & Co., Inc., 281 Pa. 320, 126 A. 791, 792 by restatement thus: 'Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the ...


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