Gaynor ex rel. Bartles v. Williamsport & North Branch Railroad , 189 Pa. 5 ( 1899 )

Opinion by

Mb. Justice McCollum,

The parties to the contract of August 17, 1892, and to the agreement of November 2, 1892, were Edgar A. Taylor, of the first part, and E. J. Gaynor, Son & Co., of the second part: The

August contract related mainly to the work to be done under it by the party of the second part in the construction “ of the extension of the Williamsport and North Branch Railway from Nordmont to Dohm’s Summit in Sullivan county, Pa.,” to the cost or price of such work, and to the time and manner of making payments on account of it. The protection afforded to Gaynor, Son & Co. by the guaranty of H. L. Taylor and John Satterfield of the faithful performance by Edgar A. Taylor of his part of the contract was satisfactory, and the adequacy of it has not been questioned. The November agreement was intended by the parties to it to provide a plan or method for settling the differences between Gaynor, Son & Co. and Edgar A. Taylor, which differences were founded upon the estimates and claims of engineer Marston, and were contested by Gay-nor, Son & Co. It was not intended that the agreement should be limited to the settlement of the differences then existing, but that it should extend to and include differences of like nature arising from the same source. The negotiations relating to these differences resulted in the appointment of arbitrators whose adjustment of them was agreed to be final and conclusive between the parties.

The contention of the plaintiffs that their contract and agreementabove stated were with the Williamsport and North Branch Railroad Company, and not with Edgar A. Taylor, appears to be plainly opposed to the contract and agreement aforesaid, and without warrant in either of them. It is not necessary, however, to consider on this appeal the question thus presented, because the learned court below, assuming the contention to be sound, determined that the alleged cause of action was not sustained by the proofs or evidence in the case. It should bo stated in this conneotion that the plaintiffs make no claim upon the contract or agreement referred to, but that they base their cause of action upon an alleged parol agreement contemporaneous with and qualifying the written agreement of November 2,1892, and ignoring, if not absolutely annulling, the contract of August 17,1892. The position of the plaintiffs therefore presents but one question and that is whether there was a parol agreement entered into between them and the defendant company on November 2, 1892, by which the written contract and agreement aforesaid were set aside or materially modified. The alleged parol agreement is based on the alleged statement or promise of H. L. Taylor, a director of the company, who is represented by Gaynor as having voluntarily assumed in behalf of the company the payment of such sums of money as the plaintiffs might allege were in excess of the sums provided for in their written contract or agreement for the same or like work done under them. Gaynor testified that Taylor’s statement or promise to him was as follows: “ You shall not lose any money; if the prices are not sufficient we will increase them; we are honest men and will treat you honorably.” The testimony of Gaynor, as stated above, was corroborated to some extent by the testimony of Embick and Gleim, but neither of them sustained his claim of a parol agreement contemporaneous with and independent of the written agreement of November 2, 1892. On the contrary, Embick distinctly testified that as he understood it everything in dispute between the parties was referred to arbitrators under the written agreement aforesaid. Gaynor, Embick and Gleim were the only witnesses of the alleged promise of Taylor, and they all agree that, while it was made on November 2, it preceded the preparation and execution of the written agreement of that date. It is noticeable too that Gay-nor is the only one of plaintiffs’ witnesses who pretends that any matter in dispute between the parties was omitted from the written agreement. Against the pretense or claim of Gaynor on this point we have the unqualified and positive testimony of H. 0. McCormick, president of the defendant company, who distinctly and emphatically stated that he embodied in the agreement of November 2 every question in dispute between the parties, and who, when asked whether H. L. Taylor said to E. J. Gaynor in his presence “ you shall not lose any money; if the prices are not sufficient we will increase them, or words to that effect” replied as follows': “No such language was used by Mr. Taylor in my presence, in my hearing at that time, or any other time, or any language that could be construed to mean an undertaking upon the part of Mr. Taylor to pay Mr. Gaynor anything that he might say this work cost; if such a remark was ever made it was never made in my hearing.” In considering the plaintiffs’ claim of a parol’ agreement it must be remembered that the meeting of November 2, 1892, was for the purpose of adjusting the differences between them and Marston concerning the classification of the work to be done under the contract of August 17, and that these differences, together with a disagreement relating to “ first class bridge masonry,” constituted the principal, if not the only, matters discussed by them. These matters were satisfactorily adjusted and, as we have already seen, were fully embodied in the written agreement of that date. We therefore conclude upon a careful examination of the evidence that the plaintiffs failed to establish a parol agreement which modified in any degree the contract of August 17, and that the only modification of that contract is to be found in the written agreement of November 2. We may add that the payments made upon and the receipts given for the estimates made subsequent to November 2 furnished no ratification of the parol agreement set up by the plaintiffs.

We concur in the conclusion of the learned court below that the alleged parol statement or promise of Taylor, one of the directors, did not create or constitute a contract between the plaintiffs and the railroad company which would bind the company. The authority to bind the company by a contract was given by the resolution of July 20, 1892, to its president or, in his absence, to its vice president. It was not within the province of a mere director to exercise the power thus limited to designated officials.

We find nothing in the rejection of the mortgage of September 1, 1892, of which the plaintiffs can justly complain.

Judgment affirmed.