Easton Power Co. v. Sterlingworth Railway Supply Co. , 22 Pa. Super. 538 ( 1903 )

Opinion by

Bbaveb, J.,

In and by a written agreement between the plaintiff and defendant, in which the former is called “ the company ” and the latter “ the consumer,” it was agreed: “ 1. That the company shall furnish to the consumer electric current for operating 70 H. P. by motors at a net price not to exceed the present cost per indicated H. P. of your steam engine and in no case to exceed $4.70 per H. P. per month, on your premises in the city of Easton, Pa., for one year from .” At

the end of the tenth paragraph there is inserted in writing: “ It being understood that this power shall be delivered to the party of the second part as they require it.” Most of the alleged errors complained of find their spring in this latter paragraph.

1. It is alleged by the plaintiff that “as they require it” referred to the erection of two several motors at different times, the one a forty horse power motor, which was to be installed early in April, and the other a thirty horse power motor, to be installed later, and that the phrase refers to what was required to run these several motors as they were installed and that, inasmuch as seventy horse power could not be furnished through a forty horse power motor, they were to pay for the amount which could be furnished through the forty horse power motor until the second one, making the maximum amount to be supplied, could be erected and installed.

The defendant, on the other hand, contends that the phrase referred to the amount required to do the work of their establishment, the amount varying at different times according to the draft made upon the power.

The language of the paragraph will apply with equal propriety, it seems to us, to either of these contentions. Under such circumstances, the rule relating to the introduction of pa.rol testimony is well stated in 6 P. & L. Dig. of Dec. 10,214: “ Parol evidence of the understanding of the parties in respect to the construction of a written instrument may be given to explain that which would otherwise be ambiguous and for this purpose evidence of declarations of a party made previous to or at the time of the signing of the contract or of the circumstances surrounding its execution is admissible.” This view of the case fairly disposes of all the assignments of error which relate to the admission of evidence and the charge of the court concerning the interpretation of the clause in the written agreement as to which there was such wide divergence of views by the parties thereto.

2. Under the rules of court of Northampton county, whatever is averred in the statement and not specifically denied in the answer and whatever of new matter is stated in the answer and not specifically denied in the replication shall be taken as admitted at the trial. These rules which we have carefully examined and similar ones which have been successfully in use in other portions of the state for many years are not only not in violation of the provisions of our procedure act of May 25, 1887, P. L. 271, but are in direct accord with its spirit and tenor and especially helpful in carrying out the prime object of its enactment. The. object of the act and of all good pleading is to reach a direct and specific issue as speedily as possible. By those rules all irrelevant matter and all admitted facts are eliminated and the parties come directly to the disputed facts, alleged on the one part and denied on the other, which constitute the issue and to which their proofs are to be addressed. In this view, we see nothing erroneous in what is complained of in the several assignments of error relating to the pleadings and the several questions arising therefrom. Although the court had stricken from the record all of the pleadings originally filed, on account of their verbosity, there was nothing erroneous in admitting them in evidence as declarations of the parties and they had the same weight as, and no greater than, any other declarations of the defendant as to what it admitted and what it denied in the plaintiff’s statement. In addition to this, the reasons given at the end of the trial for overruling objections of defendant to the admission of testimony were entirely gratuitous and can hardly be considered a part of the record of the trial. The remarks embodying them seem to have been made, as alleged by the appellee, after the jury had retired. There is no exception to them and no bill sealed and, even if the reasons given for the previous rejection of testimony were not sound, we are satisfied that the testimony itself was properly admitted and, therefore, there would be no reversible error therein.

B. As to the question of set-off. The defendant attempted to recover, under the plea of set-off, a payment which had been made to the plaintiff under circumstances which are fairly outlined in the plaintiff’s offer, and which, for the sake of brevity, are stated therefrom rather than from the testimony which in effect sustains it: “ The plaintiff proposes to prove by the witness that he was present at tests which were made and that, from the knowledge acquired during the observations of those tests, he is able to say what amount of power was required to operate the machinery then employed by the Sterlingworth company. That, after the conclusion of the tests, he had a conversation with Mr. Coolbaugh (the president of defendant company), in which Mr. Coolbaugh directed that a check should be sent to the power company for $1,061.70, and that he also said to the witness, ‘Now this matter is all settled, Mr. Fletcher, we have never had seventy horse power. I don’t blame you nor your company that you made a good trade. ■ We ought to have had that power measured. We don’t dispute your statement that the power was there, if we required it.’ That the witness then, in Mr. Coolbaugh’s presence, made a calculation and submitted the same to him, indicating that they were actually using at that time approximately seventy horse power, this conversation having taken place in October, 1899. This proof to be followed by proof of the fact that no claim was made on behalf of the Sterlingworth Company that they were permitted to take any less than seventy horse power until January 11, 1900.” The testimony adduced under this offer, so far as the payment was concerned, was not denied by Mr. Coolbaugh, who was called as a witness by the defendant. It would seem, therefore, that the money had not only been voluntarily paid but paid after tests which seemed to satisfy Mr. Coolbaugh or were at least made for the purpose of satisfying him that his company had actually received the amount of power for which the plaintiff company had charged. It is hardly necessary to quote authorities for the proposition that money paid under such circumstances cannot he recovered back. The cases are very numerous: Christ Church Hospital v. Phila. Co., 24 Pa. 229; Lehigh Coal & Navigation Co. v. Brown, 100 Pa. 338; Peebles v. Pittsburg, 101 Pa. 304; De La Cuesta v. Ins. Co. of N. Am., 136 Pa. 62; Schoenfeld v. Bradford, 16 Pa. Superior Ct. 165. In view of these and many later cases, it is clear that the action of the court, in refusing to affirm the defendant’s point in relation to the recovery of the money paid under the plea of set-oif and in affirming the plaintiff’s points in regard thereto, was correct.

This fairly disposes of the various questions raised by the twenty-five assignments of error and, finding nothing in any of them under which the court can be convicted of error, they are all overruled. Judgment affirmed.