Tranter Davison Manufacturing Co. v. Pittsburg Trolley Pole Co. , 23 Pa. Super. 46 ( 1903 )

Opinion by

Rice, P. J.,

This action was brought to recover the price of a boiler sold and delivered to the defendant under a written contract, which, according to the defendant’s allegation, contained the following clause under the head, “ Delivery.” “ Above to be delivered in good shipping order, f. o. b. cars Dayton, Ohio, freight allowed to Pittsburg, within thirty days of receipt of acceptance of the proposition, subject to delay caused by labor troubles or other cause bej’ond our control.” There is no denial in the affidavit of defense that the boiler was delivered to and retained by the defendant, or that it conformed to the specifications; nor is there any dispute as to the price. But it is alleged that there was contemporaneous oral agreement that it was to be delivered at the defendant’s place of business in Pittsburg within thirty days after the acceptance of the plaintiff’s offer, that time should be of the essence of the contract, and that in consequence of the failure to deliver at Pittsburg within the time the defendant sustained damages exceeding the price of the boiler. The primary objection to the affidavit is that the parties put their agreement as to the time and place of delivery in the written contract, and then out of abundant caution stipulated as follows : “ There are no understandings or agreements outside of this written contract and the acceptance of the machinery when delivered is understood to constitute a waiver for all claims or damages by reason of any delay.” The effect of admitting in evidence the oral agreement set up in the affidavit would be, not merely to supplement the writing upon a subject as to which it was silent, but to vary and contradict it. It was, therefore, not sufficient to allege the oral agreement and the breach thereof; it was absolutely essential to allege the conditions under which such proof is admissible. “ The existence of the parol contract, and of the conditions under which it may be proved, are alike in importance; the former can be shown only when the existence of the latter is established. And when such an agreement is alleged, the conditions that make it admissible must be set forth: ■” Smith, J., in Commonwealth Title Ins. & Trust Co. v. Folz, 19 Pa. Superior Ct. 28. See also Wodock v. Robinson, 148 Pa. 503, and Myers v. Kipp, 20 Pa. Superior Ct. 311. The affidavit does not conform to this well settled rule; therefore, the rights and duties of the parties are to be determined by the written contract, in which, as we have seen, it was expressly stipulated that acceptance would constitute a waiver of all claims or damages for delay. And, as delivery and unconditional acceptance of the boiler are admitted, and there is no clear, distinct and unequivocal allegation of failure to deliver at the time and place designated in the contract, we all agree that the plaintiff was entitled to judgment for the stipulated price. Possibly the facts alleged in the affidavit would furnish strong ground for belief that the boiler was not delivered to the carrier within thirty days ; but the fact is not distinctly alleged as it might and ought to have been if it existed. In view of the foregoing conclusions it is unnecessary to discuss the question as to the proper measure of damages for failure to deliver within the time specified, or the question of practice where it is alleged that there is a discrepancy between the original and the copy of the contract attached to the plaintiff’s statement. Upon the defendant’s own showing it has presented no' valid defense or right of set-off to the plaintiff’s claim.

Judgment affirmed.