Opinion
January 17, 1935.
March 25, 1935.
Pleadings — Allegata and probata — Action on two separate contracts — Price of materials — General denial by defendant — Defense not pleaded — Judgment n. o. v.
1. Where, on the trial of an action by plaintiff to recover on two separate contracts for materials furnished defendant, the latter admitted liability as claimed by plaintiff on the first contract but contended, and produced evidence to show, that the materials claimed by plaintiff to have been furnished under the second contract were supplied under the first contract and at the lower price therein provided for, judgment for plaintiff notwithstanding the verdict for defendant was properly entered, where the defense made at the trial was not set forth in defendant's affidavit of defense. [35-41]
2. In such case, a general denial by defendant in its affidavit as to the price of the materials averred by plaintiff to have been furnished defendant under the second contract, did not constitute an averment that such materials were supplied by plaintiff under the terms of the first contract. [40]
Argued January 17, 1935.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, DREW and LINN, JJ.
Appeal, No. 98, Jan. T., 1935, by defendant, from judgment of C. P. Chester Co., April T., 1933, No. 15, in case of Texas Company v. Bituminous Service Company, Inc. Judgment affirmed.
Assumpsit. Before WINDLE, J.
The facts are stated in the opinion of the lower court, WINDLE, J., as follows:
Plaintiff brought this action to recover, on three separate items, the price of road surfacing materials furnished by it to the defendant. The first item claimed was for the price of materials furnished under a written contract of March 28, 1932, N Y 2460. The second was for the price of materials furnished under a written contract dated May 31, 1932, N.Y. 2505. And the third was for recovery on an open book account. On the trial defendant did not deny its liability for the amounts claimed under the March contract and the open book account, but contended that it owed nothing under the May contract. It did not deny receipt of the oil or surfacing material furnished by plaintiff, except for some slight immaterial difference in the number of gallons. It contended, however, that all the material actually in controversy in this suit was furnished under the March contract which fixed a price of three and one-half cents per gallon, whereas plaintiff insisted that said material was furnished and received under and by virtue of the May contract wherein the price was fixed at six cents per gallon but later was reduced in writing signed by both parties to four cents. The jury found in favor of the defendant's position and rendered a verdict for the amount it admitted to be due after the evidence was in, and in computing which the price of the materials, exclusive of those in the open book account, was reckoned at three and one-half cents per gallon. Plaintiff thereupon took this rule for judgment non obstante veredicto, having presented a point for binding instructions in his favor for the full amount of his claim at the time of trial, and also a rule for new trial.
The transactions between plaintiff and defendant giving rise to this suit, as indicated by the evidence, which on this rule of the plaintiff for judgment of course must be considered in the light most favorable to defendant, were briefly as follows: On March 28, 1932, a written contract No. N.Y. 2460 was entered into by and between the parties for the sale and purchase of certain road surfacing materials at the price of three and one-half cents per gallon, "Destination, West Chester, Pa., and points in Pennsylvania." The maximum amount of such materials to be furnished under said contract was 125,000 gallons. On May 31, 1932, another written contract was entered into by the parties for "Slow Curing Oil (to meet New Jersey State specification)" at a price of six cents per gallon, "Destination points in the State of New Jersey." The maximum amount to be furnished under said contract was 1,000,000 gallons. Subsequently, on August 9, 1932, plaintiff by letter voluntarily reduced the price indicated in the May contract from six cents to four cents per gallon, which letter was returned from defendant with a notation, "true enough," signed by one having no authority to bind defendant, to the effect that the reduction was accepted by defendant. In addition, certain materials were sold defendant by plaintiff on open book account, in regard to which there is no dispute. Plaintiff delivered large quantities, nearly a million and one-half gallons, of material subsequent to the dates of the two contracts mentioned and received certain payments from defendant therefor, and contends in this action that there is a balance due on account thereof of $8,163.12, being made up of $7,471.32 for oil furnished under the May contract at four cents per gallon, $100.30 for oil furnished under the March contract at three and one-half cents per gallon, and $591.51 for oil furnished under the open book account.
As indicated above, after the testimony was concluded the defendant admitted liability for the amount claimed under the March contract and on the book account, but contended that the rest of the materials furnished, for which plaintiff sought to recover the price of four cents per gallon, should be paid for by defendant at the rate of three and one-half cents, thus admitting a total liability of $787.33 with interest. The jury, therefore, was concerned only with the question as to what rate was to govern in connection with the materials admittedly delivered, exclusive of those alleged by plaintiffs to have been furnished under the March contract and on the open book account — whether they should be paid for at the rate of three and one-half or four cents per gallon.
In its affidavit of defense defendant set up two defenses. The first was that the written contract of May 31, 1932, was not binding on the parties, at least as regards price, because it was orally stated to the defendant's officers by a salesman of plaintiff at the time said contract was executed by defendant that the price of six cents per gallon fixed therein meant nothing and that a price of three and one-half cents formerly, to wit, on or about February 12, 1932, orally agreed upon for the materials the subject of the contract, would prevail, and that therefore the price of four cents claimed by plaintiff under said May contract as reduced by the letter of August 9, 1932, could not be collected by plaintiff. Defendant's offer of testimony to establish such facts was not admitted by the trial judge and that defense had to be abandoned. The second defense alleged in the affidavit was that the contracts here sued upon were executed in furtherance of an unlawful agreement and conspiracy between the parties thereto in restraint of trade to maintain a uniform price and contrary to public interest. There was not sufficient evidence to establish such defense in the opinion of the trial judge and that question was not submitted to the jury. Counsel for defendant then, just before argument of counsel and after the taking of testimony was concluded, when court convened on the second day of the trial, stated that his defense was that all the materials in controversy were sold and delivered under the March contract, wherein the destination was fixed as West Chester and points in Pennsylvania, albeit they were furnished for use in the State of New Jersey and greatly exceeded in quantity the maximum fixed by said contract, and that therefore the rate of three and one-half cents per gallon as therein fixed should prevail. The trial judge submitted to the jury the question thus suggested, instructing it, inter alia, that "If you find this oil was delivered under the contract of May 31st then it was certainly delivered at a four-cent rate. If you find that it was delivered, and received by this company, under the contract of March 28th, that contract called for a three and a half cent rate, and that would be the rate that would govern. As you find that fact so will you arrive at your verdict in this case." The jury found that the materials were furnished under the March contract and rendered its verdict accordingly in favor of plaintiff in the smaller amount admitted by defendant to be due.
In support of this rule for judgment, plaintiff contends that the averments in the affidavit of defense do not warrant or permit the submission to the jury of the question as to whether or not the oil, the subject of this controversy, was furnished under the March contract; that there is no allegation that it was so furnished and that any testimony to that effect could not under the pleadings properly be admitted for the consideration of the jury for the purpose of establishing that fact. It points to the only allegation in said affidavit of defense that might support defendant's view to the contrary, where it is said, in paragraph four, "Defendant denies that said purchases were made under the alleged contract No. N Y 2505 and denies that the price of said shipments of No. 55 Surfacing Material was six cents per gallon during the period from June 6, 1932, to July 30, 1932, and denies that the price of said material was four cents per gallon during the period from August 1, 1932, to November 2, 1932. On the contrary, defendant avers that the price of said No. 55 Surfacing Material at all times during the period from June 6, 1932, to November 2, 1932, was three and one-half cents per gallon" and contends that that is not a sufficient averment of the fact that said oil was furnished under and pursuant to the terms of the March contract No. N.Y. 2460; that, therefore, the only defense upon which defendant finally could and did rely was not available to it under the pleadings and the jury should not have been allowed to consider it. If that position is correct the defendant had no defense when the case went to the jury and plaintiff was entitled to a directed verdict for the full amount of its claim, which it had established by competent proofs. While it is, of course, true that the burden is on the plaintiff to prove delivery and receipt of the oil in controversy under the May contract as altered in August, — and in that respect it made out a prima facie case — yet the defendant having admitted delivery of the said oil but denying that said delivery was made under that contract must prove by virtue of what agreement as to price at least, said oil was furnished — it must establish what price it was to pay for the oil which it admittedly received. This it endeavors now to do by pointing to the contract of March 28, 1932, any reliance on the alleged oral agreement of February 12, 1932, fixing a price of three and one-half cents, being unavailable to it, and argues that both the affidavit of defense and the proofs support this position.
We have examined the pleadings carefully and find no averment in the original or amended affidavit of defense indicating that the defendant maintained therein or expected to prove that the material in question was furnished under the March contract No. 2460. The bald denial above quoted, in a paragraph dealing largely with prices per gallon, that it was not furnished under contract N.Y. 2505 does not constitute such averment. In fact, under our authorities upon the provision of section 8 of the Practice Act of 1915 such denial constitutes rather an admission: Fulton Farmers Assn. v. Bomberger, 262 Pa. 43; Boles v. Federal Electric Co., 89 Pa. Super. 160; Weaver v. Shimer, 91 Pa. Super. 186; Meta v. Kramer, 110 Pa. Super. 132. Nothing further in the affidavit qualifies or amplifies said statement, although the other two defenses originally relied on and sought to be proved at the trial are set forth at great length in the original and amended affidavits. Paragraph six of the original affidavit treats of contract N.Y. 2460, admits the purchase of the material referred to in the same numbered paragraph of the statement of claim, and denies that the price thereof remains unpaid. In no way does it suggest that any materials other than those mentioned in paragraph six of the statement were delivered to or received by defendant under said contract — it certainly contains no averment that all material in controversy in this suit was delivered under that contract, but alleges specifically that the comparatively small amount of No. 55 Surfacing Material of the value of $100.30 for which on the trial liability was admitted, was furnished by virtue of said written agreement. Further, defendant avers in paragraphs twenty and twenty-one of the original affidavit oral agreements for a price of three and one-half cents per gallon entered into prior and subsequent to the execution of the May contract, and does not in this paragraph, in which he is setting forth his defense in detail, allege at all that the March contract governs or controls the purchases in question. We have no doubt that the affidavit of defense does not sufficiently aver that said oil was furnished under the March contract No. N.Y. 2460, and that the price thereof is subject to the terms of that contract. Consequently, the question in regard thereto should not have been submitted to the jury. That being so plaintiff was entitled to binding instructions in its favor for the amount claimed and proved by it to be due, to wit, $8,163.12 with interest from March 3, 1932, and the jury should have been instructed to render a verdict for it in that amount. Under those circumstances this rule for judgment n. o. v. must be made absolute.
In view of this disposition of plaintiff's rule for judgment, no disposition of its rule for new trial need be made at this time, and we accordingly do not undertake to pass upon it.
Rule for judgment n. o. v. absolute. The prothonotary will enter judgment in favor of plaintiff and against defendant in the amount of $8,824.32.
Verdict for plaintiff in amount of $844.15. Rule for judgment n. o. v. allowed by court. Judgment entered for full amount of plaintiff's claim in amount of $8,824.32. Defendant appealed.
Error assigned, among others, was judgment, quoting record.
Vincent Nicholson, of Taylor, Hoar Nicholson, with him C. Raymond Young, for appellant.
Maurice Heckscher, of Duane, Morris Heckscher, with him Archibald T. Holding, of Holding Harvey, for appellee.
The judgment is affirmed on the opinion of Judge WINDLE.