NO. 128 MARCH TERM, 1977, Appeal from the Judgment of the Court of Common Pleas, Civil Action, Law, of Adams County at No. 107 May Term, 1974
Ronald J. Hagarman, Gettysburg, for appellant.
Samuel Kent Gates, York, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Jacobs and Hoffman, JJ., join.
[ 251 Pa. Super. Page 234]
This action arises on a complaint in assumpsit for a failure to pay for 1,000 bushels of soybeans sold and delivered to appellant and a counterclaim by appellant for the partial failure of appellee to make deliveries on two contracts for the purchase of wheat and corn, respectively, and for the failure of appellee to pay for an order of seed wheat. Appellant is a dealer in grains with facilities at Hanover, Pennsylvania and appellee is a farmer who farms some 600 acres in the vicinity of Hanover. Appellee has obtained a judgment based upon a jury verdict in his favor for $7,500 which approximates the sum owing to him under the soybean contract after deducting his obligation to appellant for the seed wheat. The jury verdict has denied appellant any recovery on its counterclaim for damages growing out of appellee's shortfall in the delivery of wheat and corn. Appellant has appealed from the refusal of the trial court to grant a new trial.
The facts concerning the soybean and wheat seed transactions which form the basis of the judgment for appellee are undisputed. On July 21, 1973, the parties entered into an agreement evidenced by a written memorandum of purchase whereby appellee agreed to sell and appellant agreed to buy 1,000 bushels of soybeans at $7 a bushel, delivery to be made in October, November and December of 1973. Appellee raised on his farms and delivered 1,136 2/3 bushels of soybeans within the agreed time period but appellant refused payment because of its asserted counterclaim based on a shortage of deliveries under the wheat and corn contracts and an unpaid bill for seed wheat. Aside from its counterclaims, appellant concedes its obligation to pay for the soybeans.
It is likewise undisputed that appellee purchased 65 bushels of Arthur seed wheat in the spring of 1973 for which he was appropriately billed $520 but that the bill had not been
[ 251 Pa. Super. Page 235]
paid. The jury verdict of $7,500 reflects the balance owing to appellee for soybeans after deducting his obligation to appellant for seed wheat.
There is partial agreement between the parties as to the terms of the wheat and corn contracts on which appellant bases its counterclaim. The parties agree that on May 7, 1973, they entered into an agreement for the sale by appellee and the purchase by appellant of 3,000 bushels of No. 2 wheat at $2.15 a bushel, delivery to be made in June and July of that year and that they signed a written memorandum to that effect. The parties likewise agreed that appellee delivered 1,534.88 bushels of wheat for which he was fully paid but that he failed to deliver the remaining 1,465.12 bushels. The parties are in disagreement as to whether the failure to deliver was excusable because of unanticipated, abnormal farming conditions. Appellant claims damages of $1,814.36 but appellee denies liability.
The parties further agree that on May 8, 1973, appellee agreed to sell and appellant to buy 20,000 bushels of No. 2 yellow corn at $1.70 per bushel, delivery to be made in October and November of that year and that this agreement was also evidenced by a written memorandum. They agree that appellee delivered and was paid for 10,417.77 bushels of yellow corn but that he failed to deliver the balance of 9,582.23 bushels for which appellant claims damages of $11,977.79. Again, the parties do not agree on whether the non-delivery was excusable or on the appellee's liability for damages.
Appellee sought to excuse his non-delivery of wheat and corn by evidence that an unduly wet season had resulted in a partial failure of his wheat crop and an inability to plant his normal acreage of corn because of wet ground. Appellant does not dispute the testimony of appellee that the crop yields on appellee's acreage were significantly below normal because of an unusually wet season. It contends, however, that appellee's contractual obligation was to deliver 3,000 bushels of No. 2 wheat and 20,000 bushels of No. 2 corn
[ 251 Pa. Super. Page 236]
without regard to the source from which such products were obtained.
The parties agree that as a preliminary to the sales contracts they met and discussed the number of acres that appellee planned to plant in both wheat and corn and were in agreement on the yield to be anticipated per acre, out of which came a calculation of acreage multiplied by yield per acre which resulted in the number of bushels stated in the memoranda of purchase signed by both parties at the conclusion of their discussions.
The sales agreements which grew out of these discussions were confirmed by so-called memoranda of purchase written on a printed form supplied by appellant. The memoranda are each a single page in length and were completed by appellant who inserted in the blank lines the commodity being purchased, the quantity, the price and the time of delivery. The quantity of wheat was expressed as 3,000 bushels and the corn as 20,000 bushels. Nothing was said about the source of the commodities being the farms of appellee. As to excuse for non-delivery there is printed language at the foot of each memoranda stating --
"We do not accept any liability, save for our negligence, if commodity does not arrive according to billing instructions. We do not accept liability for shipping delays on account of strikes, embargoes, car shortages or other conditions beyond our control."
If this printed portion of the memoranda of purchase was intended to be applicable to these transactions it was for the benefit of appellee, the seller, because the abnormal ...