Appeal, No. 52, Jan. T., 1955, from judgment of Court of Common Pleas of Northampton County, Feb. T., 1952, No. 18, in case of Filler Products, Inc. v. William A. Corriere, Forda Corriere and Pilgrim Food Products Company, Inc. Judgment affirmed.
Francis H. S. Ede, with him Edmund P. Turtzo, for appellant.
J. D. Fackenthal, with him S. Maxwell Flitter and Fackenthal, Teel & Danser, for appellee.
Before Stern, C.j., Stearne, Jones, Bell and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
At the trial of this action in assumpsit, brought to recover the unpaid balance of the consideration allegedly due the plaintiff company under a written contract, the court directed a verdict for the plaintiff against the corporate defendant for the face amount of the claim. At the same time the court, also by direction to the jury, relieved the individual defendants of liability on the ground that they were not personally obligated by the contract in suit. Motions by the corporate defendant for judgment n.o.v. and for a new trial were overruled and judgment was entered on the verdict from which the defendant company has appealed.
Stripped of the mass of collateral and currently irrelevant matter appearing by the pleadings and exhibits which, at first glance, gives the case an extremely complicated aspect, only two paragraphs of the contract sued upon were, or now are, material. Being in writing and unambiguous, those provisions were necessarily for the court to construe as a matter of law: Onofrey v. Wolliver, 351 Pa. 18, 21, 40 A.2d 35. At an earlier stage of the proceeding, both the plaintiff and the defendant company had each moved for judgment on the pleadings. The court, then perceiving two possible issues of fact raised by the defendant's answer, properly refused both motions. However, neither of these prospective factual issues became material at the trial of the case. The one related to a possibly unreasonable delay in the plaintiff's delivery of the machine contracted for, but, at trial, the date of delivery was stipulated by the parties at a time well within the intendment of the contract as we shall hereinafter
see. The other possible issue of fact stemmed from an allegation by the defendant that an important understanding of the parties as to what the contract consideration was intended to cover had been omitted from the written agreement through mutual accident and mistake. No testimony to such effect was either introduced or offered at trial. On the basis of the relevant and material evidence received at trial, the case was peculiarly one for a directed verdict according as the court construed the written contract, the pertinent portions of which read as follows:
"3. Pilgrim Food Products Company, Inc., [the responsible defendant] agrees to pay the sum of Ten Thousand Dollars ($10,000.00) to Filler Products, Inc., [plaintiff] in manner and form following: Five Thousand Dollars ($5,000.00) by certified check to be mailed to Filler Products, Inc. on February 1, 1950, and Five Thousand Dollars ($5,000.00) on February 15, 1950, in similar form and manner, with Bill of Lading attached to assure delivery of a certain Korn Kurl machine, complete, to [Pilgrim Food Products] by [Filler Products]. ... 6. It is understood and agreed that the Korn Kurl machine, hereinabove referred to, shall be kept and operated by the [defendant] under certain terms and conditions similar to those existent in the contract between Filler Products, Inc. [plaintiff] and Flake Food Corporation [the owner and licensor of the machine]."
The first $5,000 payment, called for by the contract, was made timely and, consequently, is not here involved. The defendant company having failed, however, to make the second $5,000 payment and having also refused to accept delivery of the machine upon its arrival at destination, this suit was brought to recover the $5,000 due ...