No. 242 Pittsburgh, 1980, Appeal from the Judgment of the Court of Common Pleas of Cambria County, Civil Div., at No. 1976-1671.
John A. Metz, Jr., Pittsburgh, for appellants.
David E. Thomas, Philadelphia, for appellee.
Spaeth, Wickersham and Watkins, JJ.
[ 285 Pa. Super. Page 85]
This is an appeal from a judgment in an action on a written contract. The issue is whether the writing in question is an enforceable contract. The lower court left this issue to the jury, and when the jury found that the writing was an enforceable contract, refused to enter judgment n. o. v. We affirm.
[ 285 Pa. Super. Page 86]
On December 6, 1974, appellee Yellow Run Coal Company, a strip mining company, and appellants, Alma-Elly-Yv Mines Ltd. and Yellow Run Energy Company, signed a typewritten agreement under which Yellow Run agreed to mine coal from certain property in Adams Township, Cambria County, and appellants agreed to pay Yellow Run $14 per net ton of coal mined, with the provision that "should the cost of extracting the coal from the ground . . . exceed the sum of $10.00 per ton then the gross figure paid . . . will be increased so as to guarantee all costs of operation plus the sum of $4.00 per ton." The mining operations were to continue for a minimum period of two years. Over the next six months, Yellow Run mined 7,840.05 tons of coal, and appellants paid it $109,760.70 or $14 per net ton. On May 5, 1976, Yellow Run filed the complaint in assumpsit that commenced the present litigation, alleging that appellants owed it $217,627.40, which was the total of $186,267.20, representing the guaranteed costs of operation, plus $31,360.20, representing $4.00 per ton of coal mined. On February 1, 1979, a jury returned a verdict for Yellow Run in the exact amount claimed. The lower court denied appellants' motion for judgment n. o. v. or a new trial. On appeal, appellants only argue for judgment n. o. v.
At the end of the typewritten agreement is the following handwritten statement:
The validity of this Agreement is conditional upon the incorporation of all changes listed on the initialed accompanying attached yellow sheet, copy of which is in Ben Weerts'*fn1 possession.
The attached yellow sheet, also handwritten, has written across the top of it the phrase, "Modifications, changes, deletions etc. -- to be made in proposal" Then there follow six ...