Easton Theatres Inc. v. Wells Fargo Land and Mortgage Company, 498 Pa. 557, 449 A.2d 1372 (1982); James v. Silverstein, 224 Pa. Super. 489, 306 A.2d 910 (1973). Since there is no express stipulation on the confirmatory mailgram that the parties had agreed to make time of the essence, we must look to the conduct of the parties for an indication as to whether they so agreed.
There was conflicting testimony as to when, or whether, Defendant made it known that it was absolutely imperative that the oil be delivered in "early" December. Thus, a question of credibility arises. If Defendant is to satisfy the second prong of the test announced in Easton Theaters Inc., supra, relative to circumstances providing a clear indication that time was of the essence, it is necessary that Defendant provide convincing testimony or other evidence to that effect.
We must note that we perceived no inaccuracy or contradiction whatsoever in any testimony proffered by Plaintiff's witnesses. Of particular significance was testimony relating to the fact that oil prices began to slide markedly shortly after agents of the respective parties met in Clarks Summit, Pennsylvania in late October of 1982. It is Plaintiff's allegation that it quickly became apparent to Defendant that better prices were available and that, as result, Defendant began to grope for a way to renege. This theory becomes very plausible when comparing certain aspects of Defendant's testimony with the rationale stated on its cancellation notice of November 26, 1982.
The Defendant's key witness, Thomas Quigg, testified that Defendant was justified in cancelling the contract because Defendant had found it necessary to arrange for deliveries from other suppliers so that Defendant could continue to supply its customers. Granting veracity to this statement, we can draw no other inference but that business was brisk; so brisk that Defendant felt it could not run the risk of alienating its customers by making them wait for delivery. This explanation advanced by Witness Quigg contrasts starkly with the explanation which appeared on the face of the cancellation mailgram.
When confronted by the written notice during cross-examination, Witness Quigg's attempt to reconcile his testimony with the rationale of the mailgram was implausible at best. Moreover, this Court simply cannot reconcile the fact that Defendant took two deliveries
from other distributors in December of 1982, which were arranged subsequent to the one scheduled from Plaintiff, with Defendant's written position that there was a "severe drop in demand" for its product. This obvious inconsistency precludes any finding by this Court that circumstances clearly indicate the parties agreed to make time of the essence in the transaction which is the focus of this lawsuit.
In summation, having reviewed the briefs and various business records which were offered into evidence, and having had an opportunity to observe the witnesses on the stand, we find that a contract was formed between these parties. We find, also, that Defendant's attempt to make time of the essence in this transaction was an attempt at unilateral modification and ineffective. Clarkson v. Crawford, 285 Pa. 299, 132 A. 350 (1926). In accord with these findings we rule for Plaintiff.
The amount of damages which should be assessed against Defendant in this matter is not readily determinable. When oil is put into a pipeline it is assigned a "batch" number. The testimony shows that such a "batch" is not easily traced when an order is refused or cancelled. Ultimately, such oil often is commingled with other "batches" from other suppliers. This fact coupled with the rapid price fluctuations which are typical in this industry make it impossible to determine exactly what price a "batch" such as the one Defendant refused to accept here brought. Plaintiff originally claimed damages of $139,125.00. This figure was computed using a formula consistent with the provisions of the Uniform Commercial Code as specified in 13 Pa. C.S.A. § 2708(a).
(1) 42 gallons per barrel