Morley Auto Co. v. Pittsburg Machine Tool Co. , 54 Pa. Super. 223 ( 1913 )

Opinion by

Henderson, J.,

It is admitted that the defendant’s obligation was to deliver to the plaintiff an automobile truck at the end of four weeks from March 25,1907, and that the machine was not ready for shipment until the first week in August. A strike in the defendant’s shop was given as an explanation of the delay. Correspondence between the parties shows that on six or seven different dates the defendant promised to have the work completed in a short time or at a date stated in the near future and that no one of these promises was complied with. The defendant knew that the machine was ordered for a customer of the plaintiff’s and the specifications as to construction were made to meet the requirements of that customer. After repeated promises and delays the plaintiff informed the defendant by' letter dated June 11, 1907, that its customer had given positive instructions to cancel the order for the car unless it could be shipped by the seventeenth of that month. On the same date the defendant wrote to the plaintiff that the machine was being tested and was about ready to be shipped but that the body which they were having made by another manufacturer had not yet arrived and on the eighteenth of the same month the defendant wrote that it would be shipped in about a week. On July 11 the company for which the plaintiff ordered the car canceled the order for the reason that it had not been furnished according to agreement and no information could be obtained as to the time when it would be furnished. A copy of this letter was sent by the plaintiff to the defendant under date of July 12. The action was brought to recover a hand payment of $900, made by the plaintiff at the time the- order was given. The court submitted to the jury the question whether the plaintiff canceled the order and this direction is excepted to in the assignments of error. The appellant’s contention is that the plaintiff’s letter of July 12 and the inclosed notice from the proposed purchaser was not a cancellation, that notice of an intended cancellation should have been given to the defendant and that the court should have instructed the jury that a cancellation was not effected. The principal part of the evidence was made up of letters and telegrams passing between the parties but a part of it was in parol, witnesses having been called by the defendant to show the circumstances which caused the delay in completing the truck. The evidence puts the case in that class in which matters of fact depending on oral testimony are connected with, and necessary to, a proper understanding of the written evidence, in which cases the court is not bound to construe a writing as though it stood alone. Illustrations of the application of the principle are found in Sidwell v. Evans, 1 P. & W. 383; McGee v. Northumberland Bank, 5 Watts, 32; Home B. & L. Assn. v. Kilpatrick, 140 Pa. 405, and Winters v. Schmitz, 36 Pa. Superior Ct. 497. Extrinsic circumstances are sometimes so connected with a writing as to make it necessary to submit all of the evidence to the jury. It is clear from the oral evidence and the correspondence that the defendant desired more time and induced the plaintiff to expect that the truck would be promptly delivered although not at the time stipulated in the contract. The action of the plaintiff in delaying to cancel cannot be regarded as a waiver of the right to cancel for default. It was an indulgence to the defendant growing out of the latter’s repeated promises to perform at the times indicated. If the plaintiff forebore to rescind it it is not to be charged with a waiver merely because it relied on the promises which the defendant so often made and which were made for the purpose of stimulating the patience of the plaintiff. When the correspondence is considered in connection with the oral testimony there is room for supposing that the jury may have concluded there was no reason for the belief expressed by the defendant that the car would be delivered at the times specified. The inconsistencies in the evidence as to the number of men at work in the defendant’s shop and the fact that the part which seems to have caused the greatest delay was made at another factory may have led the jury to believe that the promises were made to hold the contract without due regard for the time of performance. The delay was not highly important to the plaintiff as long as its customer was willing to take the machine, but when the latter canceled his contract the plaintiff had no place to dispose of it. The time to serve the notice of cancellation was when the plaintiff lost the purchaser. The letter of the plaintiff of June 11 informed the defendant that its customer had given notice to cancel his order if the car was not shipped by June 17. There was ample warning, therefore, of the importance of promptness and that a cancellation of the order was imminent. It was a month later when the notice of cancellation was actually sent and the truck was then not ready for shipment. There is nothing in the evidence to show that anything was done by the defendants after the plaintiff’s letter of July 12, 1907, and we do not regard the telegram of July 23, inquiring when the defendant would ship the truck as important. No answer was sent to that telegram and the inquiry was probably made for the purpose of obtaining information to be used in an effort to induce the customer to reconsider the order of cancellation. A consideration of the whole case leads us to the conclusion that the question was one for the jury and properly submitted.

The assignments are overruled and the judgment affirmed.