subject was intended to be embodied by the writing), the chief and most satisfactory index * * * is found in the circumstances whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered, or dealt with in the writing, then presumably the writing was meant to represent all of the transaction on that element; if it is not, then probably the writing was not intended to embody that element of the negotiation.' Wigmore on Evidence (2d Ed.) vol. 5, page 309.
'As the written lease is the complete contract of the parties, and since it embraces the field of the alleged oral contract, evidence of the latter is inadmissible under the parol evidence rule.' (Emphasis added.)
In considering this matter the order form completed by defendant must first be considered. There are no prices entered opposite the product quantities there listed. But, says plaintiffs, the prices are supplied by the invoice which is a part of the evidence of the contract. The invoices do supply prices but also listed thereon are quantities of Vitamin's products not listed on the order form and which are followed by the notation, 'N.C.' which it is agreed means 'no charge'. And, indeed, defendant was no charged for these quantities. The original of the order form which Sherry took with him has the discount percentages noted in ink. The carbon copy retained by defendant does not show these notations but other and, to some degree, different notations of discounts entered in pencil sometime after the original was written. The items 'Counter displays' (no quantity) and '50 Binder inserts' are conceivably self-explanatory though they do not appear on any invoice. The term 'authorization forms', however, is unarguably ambiguous and demands extrinsic explanation. Such a term would alert any reasonably vigilant business person that there was likely something to the transaction more than the ordinary purchase and sale of merchandise. And since no prices are assigned to the vitamins on the order form but were supplied by the invoice, was it contemplated that counter, displays, authorization forms and binder inserts also be purchased, or some of them, or were they to be given away free? Since substantial amounts of vitamins were, according to the invoices, supplied on a no charge basis, what if anything was defendant expected to do in return? Gratuities of this size and nature are not part of the usual course of business. Vitamin found it necessary or desirable to ship the products listed on defendant's order form on two different days under two invoices. Why are plaintiffs suing only for the value of the products shipped under the first invoice, $ 6,800 and are not claiming for the remainder of the items listed on the order blank and shipped under the second invoice in the amount of $ 1,651.20? None of these questions can be answered by reference to the two writings which plaintiffs contend are, when integrated, an entire contract. The two writings fall far wide of complementing each other and cannot be dovetailed on the basis of the information therein contained. They raise far more questions about the transaction than they lay. No court or business man could consider that these writings were 'intended to set forth the entire agreement as to that particular subject.' We have, therefore, two writings of which one contains an ambiguous term, 'authorization forms', and when taken together are neither self-explanatory nor can they be said to be complete in their essential elements. Clearly extrinsic evidence would be admissible to cure these defects and supply the deficiencies. See Fields v. James B. Sipe & Co., 1924, 319 Pa. 448, 181 A. 377; Warner Co. v. North City Trust Co., 1933, 311 Pa. 1, 5, 166 A. 230; Madison-Kipp Corporation v. Price Battery Corporation, 1933, 311 Pa. 22, 27, 166 A. 377; Easby's Petition, 1937, 326 Pa. 511, 192 A. 646, and O'Brien v. O'Brien, 1949, 362 Pa. 66, 66 A.2d 309.
Defendant here, however, is not seeking to contradict or modify the content of the writings. It is instead contending that though the writings say exactly what the parties intended them to say, they do not constitute a contract nor did any contract ever exist between the parties. Nor could such a contract come into being, says defendant, until defendant was supplied with a written confirmation of the engagements made by Sherry. Stated in another way, defendant insists that Vitamin was to supply, as its part of the contemplated bargain, something more than vitamin tablets for sale, i.e. a considerable volume of advertising and free merchandise, and that it was not intended by the parties that they should be contractually bound until such commitments were reduced to writing. It is really not important whether the advertising was ever done or credit for the free merchandise ever given for if defendant is correct there was never any contract. This is what the defendant attempted to prove and it was this question of intent which was placed before the jury. On that point the jury found for the defendant. The writings not being sufficiently complete or precise to justify excluding evidence aliunde the papers, evidence was properly admitted to explain the matters referred to in the writings and to make clear patent ambiguities. If instead of a different contract, the evidence establishes no contract at all, plaintiffs cannot complain.
Plaintiffs in their motion for a new trial stated that they 'reserve the right to file additional reasons * * *.' Eleven additional reasons were filed more than two months later. All related to specifically quoted testimony admitted over plaintiff's objections. The Court, if it were to consider these reasons, would be exceeding its jurisdiction as laid down by Rules 59(b, d), and 6(b) of the Federal Rules of Civil Procedure, 28 U.S.C., Fine v. Paramount Pictures, Inc., 7 Cir., 1950, 181 F.2d 300. Reasons for granting a new trial cannot be considered if filed more than ten days after entry of judgment. A party cannot 'reserve the right' to so extend this expressly limited jurisdiction nor could the Court do so on its own motion.
An order will be entered denying both motions.
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