May 21, 1956
THE DANIELS COMPANY, CONTRACTORS, INC., APPELLANT,
Appeal, No. 171, Jan. T., 1956, from judgment of Court of Common Pleas of Clearfield County, Sept. T., 1955, No. 891, in case of The Daniels Company, Contractors, Inc. v. James K. Nevling, Trustee. Judgment affirmed.
Carl A. Belin, for appellant.
Robert V. Maine, with him William T. Davis and Nevling & Davis, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
[ 385 Pa. Page 277]
OPINION PER CURIAM
The sole question in this case is whether an additional provision in a written contract for the sale and purchase of a coal-washing machine (which was constructed, accepted and paid for) constituted an option or a definite undertaking on the part of the buyer to purchase two additional machines within a specified period. The learned court below, in an opinion to which we can add nothing, construed the provision to be an option, which the buyer never exercised. The judgment will therefore be affirmed on the opinion of President Judge PENTZ reported in 5 D. & C.2d 314.
In view of the action which we thus take, the appellee's motion to suppress portions of the appellant's brief, which was renewed at bar, becomes moot and will be denied pro forma. We are not to be considered,
[ 385 Pa. Page 278]
however, as approving the appellant's inclusion in its brief of factual matter not appearing of record. The action was instituted on the appellant's petition for a declaratory judgment to which an answer with new matter was filed, and the controversy was disposed of, without testimony, on the appellant' motion for judgment on the pleadings. It is patent that the appellant's brief contains much extraneous matter which should not have been included therein.
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