Before GOODRICH, MCLAUGHLIN and KALODNER, Circuit Judges.
KALODNER, C. J.: The plaintiffs having suffered judgment against them below on a jury's verdict and their motions for a directed verdict and/or a new trial having been denied,*fn1 have brought this appeal raising these issues:
(1) Did the trial judge err in permitting parol evidence to the effect that a Wage Agreement allegedly entered into between the defendant and the United Mine Workers of America ("Union") which required the defendant to make certain payments to the plaintiffs' Welfare and Retirement Fund was never consummated because a condition precedent to its consummation never occurred; and
(2) Did the trial judge err in his refusal to hold as a matter of law that (a) the defendant had ratified the contract, and (b) the defendant was estopped from maintaining that the contract was never consummated?
The plaintiffs, citizens of states other than Pennsylvania, are Trustees of the United Mine Workers of America Welfare and Retirement Fund of 1950 ("Fund").The defendant is Edward Mears, individually and trading as Mears Coal Company, a resident of Marion Center, Indiana County, Pennsylvania. Jurisdiction exists by reason of diversity.
The Fund was created by the National Bituminous Coal Wage Agreement of 1950. The latter, as amended effective October 1, 1952, provided that each coal operator entering into it covenanted to pay into the Fund forty cents for each ton of coal produced for use or sale. This Agreement will hereinafter be referred to as the "1952 Agreement."
In December 1956 the plaintiffs brought suit against the defendant in the District Court of the Western District of Pennsylvania alleging that he had entered into the 1952 Agreement on October 31, 1952 and as a consequence was obligated to pay into the Fund forty cents on each ton of coal produced between October 1, 1952 and December 31, 1955 and that he had not discharged that obligation.
At the trial the defendant was permitted to testify, over the plaintiffs' objection, that when in October 1952 he signed the 1952 Agreement, as well as the 1950 and 1951 Agreements, he did so on the representation of Union's bargaining representative, Arthur Anderson, that the 1952 Agreement "wouldn't be a contract" until defendant "got the contract back signed and fully executed" by the Union. The defendant further testified that he had never received a copy of the 1952 Agreement signed by the Union and on this score it must be noted that the plaintiffs made no denial of that circumstance. The testimony established that the 1952 Agreement was signed by the Union subsequent to the time that the defendant signed it.
Anderson denied that he had agreed with the defendant that the 1952 Agreement would not become effective until it was signed by Union and a copy returned to defendant. He also testified that the defendant had signed the 1950 and 1951 Agreements on May 15, 1952, and not in October 1952 as defendant claimed.
The trial judge, pursuant to Rule 49(a), Fed. R. Civ. P., 28 U.S.C.A., submitted to the jury in the first of two Interrogatories the specific issue as to whether Anderson had agreed with the defendant that the 1952 Agreement "would not become valid and enforceable" until the defendant had received a copy of it executed by the officers of the Union.*fn2 The jury answered "Yes" to this Interrogatory.
The second Interrogatory presented to the jury the issue as to whether the defendant had in writing advised the plaintiffs in April 1953 that he had cancelled the contract with the Union. The jury's answer to this Interrogatory was "No."
The issues submitted to the jury were limited to those presented in the two Interrogatories and the record discloses, as the trial judge noted in his Opinion, 189 F. Supp. 505, neither counsel requested "that any other issue of fact be submitted to the jury."
It must be noted, however, that the trial judge in his charge to the jury directed attention, as bearing upon the issue whether a binding contract had been entered into, to testimony adduced by the plaintiff that the defendant had signed the 1950 and 1951 Agreements on May 15, 1952 and not in October 1952 when defendant said he had signed these Agreements along with the 1952 Agreement; that one Blizzard, an employee of the Fund, had on May 20, 1952 sent forms to the defendant relating to the tonnage payments and that the defendant had completed these forms and made payment in accordance therewith during the intervening months up to April 5, 1953;*fn3 and that the ledger records of the Fund evidenced royalty payments by the defendant as early as July 9, 1952.
Anent the foregoing the trial judge in his charge also called attention to the defendant's testimony that "although he had been paying royalties for a period prior to October, 1952, he did so not because he signed Exhibits 1 and 2 the 1950 and 1951 Agreements on May 15, ...