Appeal from order of Court of Common Pleas of Lehigh County, June T., 1971, No. 347, in case of The National Cash Register Company v. Modern Transfer Co., Inc., and Martin E. Zales.
Richard F. Stevens, with him Thomas F. Traud, Jr., Howard A. Wiener, and Butz, Hudders & Tallman, for appellant.
Alan M. Black, with him Efron and Black, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Jacobs, J., would affirm on the opinion of Judge Backenstoe.
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This appeal raises two somewhat interrelated legal questions: (1) may a party to a written contract introduce parol evidence of prior oral representations inducing said party into entering the contract, but which would be inconsistent with or in addition to the written agreement; and, (2) may a party recover consequential damages for an alleged breach of performance under the contract where the parties expressly agreed to an exclusion of damages clause in their written agreement.
The National Cash Register Company (hereinafter, "NCR") commenced this action in assumpsit against Modern Transfer Company (hereinafter "Modern") seeking to recover damages as a result of Modern's alleged breach of contract in both failing to accept delivery and to pay rentals due under the terms of the agreement. The parties entered into two written contracts for the rental of an NCR Century 100 computer and a disc pack to be used therein on September 4, 1969. The complaint alleges that NCR was and has been at all times ready, willing and able to perform its obligations under the lease agreements.
Modern filed an Answer and New Matter alleging a breach of contract on the part of NCR. After preliminary objections thereto were sustained. Modern filed an amended pleading which also set forth counterclaim in two counts -- one in trespass claiming fraudulent misrepresentations
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made by NCR's sales agent prior to the formal contract, and a second count in assumpsit claiming breach of contract by NCR. Modern also joined NCR's sales agent, Martin E. Zales, as an additional defendant based upon the same alleged fraudulent misrepresentations. The additional defendant's preliminary objections to Modern's complaint against him were dismissed by the court below.
The oral representations and allegations of NCR's breach were as follows:
(1) That the NCR Century 100 computer would out-perform an IBM computer for Modern's intended uses. (The written lease merely provides: "NCR warrants the NCR Century 100 is capable of performing the function now being performed on the customer's IBM 1440 System.")
(2) That NCR would furnish a qualified systems analyst with experience as a systems analyst in computer accounting for the trucking industry. (The written lease provides that NCR will furnish a qualified systems analyst, but does not require any specific experience in the trucking industry.)
(3) That NCR would be responsible for the conversion of appellant's accounting programs into a workable form suitable for use on the NCR Century 100. (The written lease provides: "NCR will review, assist and make recommendations to the customer regarding the equipment and the customer's programming techniques, systems approach, debugging ...