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LEWIS v. MEARS

November 23, 1960

John L. LEWIS, Henry G. Schmidt and Josephine Roche, as Trustees of the United Mine Workers of America Welfare and Retirement Fund, Plaintiffs,
v.
Edward MEARS, individually and trading as Mears Coal Company, Defendant



The opinion of the court was delivered by: MARSH

Plaintiffs, trustees of the United Mine Workers of America Welfare and Retirement Fund, brought this action to recover money due to the United Mine Workers of America Welfare and Retirement Fund (hereinafter Fund) by the defendant pursuant to a contract allegedly entered into by the defendant and the United Mine Workers of America. This contract, which was the 'National Bituminous Coal Wage Agreement of 1950 as Amended September 29, 1952' provided, inter alia, that the operators signatory thereto should pay into the Fund the sum of forty cents (40 cents) per ton of two thousand (2,000) pounds on each ton of coal produced for use or for sale. *fn1" Without going into detail, it can be stated briefly that plaintiffs contend that defendant entered into the above-mentioned contract on or about October 31, 1952, and that between October 1, 1952, the alleged effective date of the contract, and December 31, 1955, defendant produced a certain amount of coal for use or for sale for which defendant did not make the contractually required payments to the Fund. The defendant contends, on the other hand, that the contract referred to never was consummated because a condition precedent to its consummation never occurred. Additionally, defendant maintained that even if it be found that the contract was entered into, the defendant, nevertheless, terminated it on or about April 5, 1953.

By stipulation filed prior to trial, the defendant admitted that he had signed the contract in question, but at the trial, over objection by plaintiffs, defendant was permitted to testify that one Arthur Anderson, an officer of the United Mine Workers of America -- who with other officers thereof later signed the contract on its behalf -- negotiated the contract with defendant, procured defendant's signature thereto, and had agreed that the contract would not become effective until the defendant received a copy signed by the United Mine Workers of America. Defendant testified that he had never received such a copy of the contract and plaintiffs introduced no evidence to the contrary. At the close of defendant's case, plaintiffs moved for a directed verdict on the ground that plaintiffs had proved their cause of action and defendant had failed to prove any defense thereto. This motion was denied. At the close of all the evidence, plaintiffs made a similar motion and decision thereon was reserved (Rule 50(b), Fed.R.Civ.P., 28 U.S.C.A.).

  The case was submitted to the jury on two interrogatories pursuant to Rule 49(a), Fed.R.Civ.P., 28 U.S.C.A. These interrogatories were submitted to counsel prior to their closing address to the jury, *fn2" and neither counsel made any objection thereto nor did either counsel demand that any other issue of fact be submitted to the jury.

 The questions submitted to the jury were:

 '1. Did Arthur Anderson agree with the defendant Mears that the written instruments, Exhibits 1, 2 and 3, at the time they were signed by Mears, would not become valid and enforceable contracts until Mears received copies thereof executed by the officers of the United Mine Workers of America?'

 to which the jury answered 'Yes', and

 '2. Did the defendant Mears on April 5, 1953 enclose a note with the check letter of advice which he sent to plaintiffs stating in said note that he cancelled the contract with the Union?'

 to which the jury answered 'No'.

 The verdict was rendered on May 4, 1960.

 Argument was had on plaintiffs' second motion for a directed verdict on June 21, 1960, *fn3" and on the following day an order was filed denying the motion and entering judgment in favor of the defendant in accordance with the jury's answers to the interrogatories.

 On June 30, 1960, plaintiffs filed the motions here under consideration, viz., a 'Motion to Reopen Judgment and For a Directed Verdict in Favor of the Plaintiffs' and a 'Motion for New Trial'.

 Motion for New Trial. *fn4"

 Plaintiffs cite fourteen points in support of this motion; in their briefs and at oral argument, however, they stress only three which may properly be considered under a motion for new trial. These points may be summarized as follows:

 1. The court erred in permitting evidence that the proposed agreement was not to become a contract until defendant received a copy of it signed by the United Mine Workers of America. Plaintiffs contended that this evidence was in violation of the parol evidence rule.

 2. The court erred in not finding as a matter of law that the defendant was estopped to disavow the agreement.

 3. The court erred in not finding as a matter of law that the defendant ratified the agreement.

 The parol evidence rule has no application to the facts of this case. Here, the defendant admitted that he signed the contract document, but contended that it never ripened into a contract because Anderson, who procured defendant's signature, had agreed that the instrument would not be a contract until defendant had received a copy, signed and completely executed. This, defendant contended, was a condition precedent to the formation of the contract, and since the condition never occurred, there was no contract.

 The parol evidence rule provides generally that whenever any contract is contained in writing which appears to be complete and regular on its face, it is the sole evidence of the agreement, and cannot be varied, altered, or contradicted by parol (except in certain circumstances not present in this case). See: Bardwell v. Willis Co., 1953, 375 Pa. 503, 100 A.2d 102 and cases cited on page 104 of 100 A.2d.

 It is, of course, fundamental that with respect to the application of the rule to contracts, there must first be a contract. In Smilow v. Dickerson, 1947, 357 Pa. 455, 54 A.2d 883, the Court at page 886 of 54 A.2d quotes from Burke v. Dulaney, 153 U.S. 228, 14 S. Ct. 816, 38 L. Ed. 698, as follows:

 "The rule that excludes parol evidence in contradiction of a written agreement presupposes the existence in fact of such agreement at the time suit is brought. But the rule has no application if the ...


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