No. 6 Philadelphia 1980, Appeal from Order of the Court of Common Pleas of Monroe County, Civil Action at No. 1148 June Term 1977.
Stanley P. Ticktin, Stroudsburg, for appellant.
Charles J. Fonzone, Allentown, for appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 283 Pa. Super. Page 150]
This is an appeal from a judgment entered in an action on a written contract. The trial judge, sitting without a jury, found against appellant in the amount of $24,755.95. On appellant's exceptions, the court en banc reduced this amount to $23,530, but otherwise it dismissed the exceptions.
Appellant is a scrap dealer. Appellee is a supplier of industrial gas. The gas is delivered in reusable cylinders, which remain appellee's property. Appellee's standard practice is to make a demurrage (or rental) charge for the cylinders in addition to the charge for the gas.
For about a year, appellant and appellee did business under an oral agreement. They then entered into a written contract, which was a standard form and was supplied by appellee.*fn1 Paragraph five provided that the cylinders were appellee's and were only loaned to appellant for the purpose
[ 283 Pa. Super. Page 151]
of delivering gas, and that appellant would not refill them. Paragraph six provided that appellant would return the cylinders to appellee, and would pay demurrage for late return, and also, would pay for the loss of or damage to the cylinders. At appellant's request this paragraph was deleted by having two diagonal lines drawn through it before the contract was signed. Paragraph ten contained a merger clause and also provided that any modification of the contract had to be in writing. The term of the contract was three years, with provision for automatic year-to-year renewal unless a party gave 12 months notice of intent to terminate. Eventually the parties severed their business relationship, and this litigation ensued.
Appellee's complaint alleged that appellant owed $3,775.95 for gas delivered and not paid for and in addition had failed to return or account for more than 200 cylinders valued at $20,980. Appellant's answer denied liability and made a counterclaim for $16,315.69, which was alleged to be the amount of demurrage appellant had paid over the years; according to the answer, this demurrage was improper under the written contract between the parties and had been paid in error.
At trial, appellee's principal witness was its manager, Albert Lilly. His testimony may be summarized as follows. Two or three months after the written contract took effect, Lilly approached appellant and requested that the contract be modified to provide for the demurrage charge called for by the previously deleted paragraph 6. The reason for this request was that the turnover of the cylinders in appellant's possession was too slow for appellee to realize any return on its investment in the cylinders. Appellant initially resisted but agreed to the modification after Lilly suggested that he could recoup the charge by passing it on to his own customers. Appellant's agreement to the modification was oral only; appellee did not claim that the ...