Herring v. Weinroth , 61 Pa. Super. 529 ( 1915 )

Opinion by

Ivephart, J.,

This is an appeal from the judgment of the Municipal Court after a trial by a judge without a jury. Unless requests for findings of fact are presented to the trial judge, the disposition of questions of fact arising from the testimony would have the same effect and should be treated in the same manner as though the evidence had been submitted to a jury at common law. This court will not disturb the conclusions of the judge when based on proper evidence or inferences fairly deducible from such evidence. In this appeal the trial judge found that a contract existed between the parties and that the plaintiff had complied with its requirements. The contradictions that may have appeared in the testimony and whether the parties by a course of dealing intended anything different from the engagement found to exist, were questions of fact for the trial judge. These questions were determined adversely to the defendant. Appellant urges that the contract was not an original undertaking but is analogous in principle to an agreement of suretyship or guaranty, limited in effect to the price of goods as first purchased by the beneficiary in an amount not to exceed five hundred dollars and in no event was it a continuing oh ligation for the price of goods subsequently purchased. Had the parties acted under a written agreement the decision of this question would have been imposed on the court as a matter of law, but when the agreement is founded on spoken words and the course of dealing bears on the interpretation of the contract, the sense of the words used, in connection with what the parties intended to express by them, is exclusively one of fact: Maynes v. Atwater, 88 Pa. 496. If the contract is verbal it is, of course, one of fact to be ascertained by the .jury, in this case, the trial judge: Forrest v. Nelson Bros. & Co., 108 Pa. 481. It was held in Warnick v. Grosholz, 3 Grant 234, that the question as to whether a parol contract was one of guaranty or direct undertaking was for the jury. The trial judge found the contract to be a direct undertaking. There was sufficient evidence to sustain his finding. The conduct of the parties, the manner in which their dealings had been conducted, and the fair inference to be deduced from the conversation of February, 1912, warrant the conclusion that the defendant’s engagement was a continuing one; that the plaintiffs were authorized to ship goods to the defendant’s brother-in-law and charge the defendant therefor. The limit of the defendant’s liability was six hundred dollars, con-tinning until legally cancelled. The only difference between their dealings prior to February, 1912, which dealings defendant admits, and those after that date, was that instead of requiring a written order from the defendant, the brother-in-law the beneficiary under the contract Avas authorized to order goods; and instead of a continuing general liability, there was substituted a continuing limited liability not to exceed six hundred dollars. Though the account in the aggregate amounted to some tAvo thousand dollars, it had been reduced by payments to less than six hundred dollars and Avas ahvays within that figure on an open account.

The assignments of error are overruled, and the judgment is affirmed.