Appeal, No. 193, Jan. T., 1953, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1947, No. 3895, in case of John Gillespie Galt and Howard Thomas Galt, Exrs., Estate of John S. Galt, deceased v. Seaboard Construction Company. Judgment reversed.
Harry Norman Ball, with him Morris L. Weisberg, for appellant.
Francis E. Marshall, with him Francis E. Shields, Joseph S. Conwell, Jr., W. Edward Greenwood and Pepper, Bodine, Stokes & Hamilton, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The defendant, Seaboard Construction Company, a corporation, having entered into a contract with Atlantic
City for the construction of a jetty, sought a supplier of the necessary stone by inviting bids from quarry operators. The plaintiff, John S. Galt, doing business under the fictitious name of Keystone Trappe Rock Company, was low bidder. After officers of Seaboard had satisfied themselves from a visit to Keystone's quarries and upon assurances from Galt that Keystone was capable of supplying Seaboard's requirements of stone for the work, the parties orally entered into an agreement which Seaboard confirmed in writing in the form of a letter addressed to Keystone which the latter expressly approved by signature.
The presently material parts of the agreement are as follows: "This will confirm your [Keystone's] agreement to supply to us [Seaboard] up to our requirements of jetty stone approximating 31,000 tons for our contract on the Atlantic City jetties, Project No. 206, at Atlantic City, New Jersey, with which you are familiar." The specified price for the stone was "$292 1/2 per 2,000 1bs. f.o.b. cars...." The agreement also contained the following, -- "In order to fulfill our contract, beginning about November 1st we must be given the right, and you agree that we may require as much as 400 tons per day, and we cannot afford any ments, you will agree that we must reserve the right delay in delivery, and if you do not meet our require to procure stone elsewhere."
Seaboard was obligated by its contract with Atlantic City to complete the job in 140 calendar days. The contract with Atlantic City also provided for penalties on Seaboard if it failed to complete the job on time. Under normal conditions the work should have been completed about mid-March of 1946.
Keystone, for various assigned reasons, failed to fulfill Seaboard's requirements ...