Scranton Gas & Water Co. v. Weston , 57 Pa. Super. 355 ( 1914 )

Opinion by

Henderson, J.,

The plaintiff had purchased and was the owner of a used Pierce Arrow automobile which an employee left standing in an alley near the door of a garage. ' The defendant’s automobile driven by his chauffeur collided with the plaintiff’s as a result of which collision the plaintiff’s machine was damaged to a considerable extent. The plaintiff alleged that the accident happened wholly because of the negligence of the defendant’s servant and that a consequent liability of the defendant arose. The defendant claimed that there was concurrent negligence on the part of the plaintiff’s employee in charge of its automobile. At the trial the defendant offered to prove that prior to the bringing of the action by the plaintiff Mr. Broadbent and Mr. Teeter, representing the defendant, went to the office of the president of the plaintiff company, who had authority to act in the premises, and entered into negotiation with him looking to a settlement; that they inquired with reference to the purchase of a comparatively new Pierce Arrow body to take the place of the one damaged in the collision and stated that they had received from the Pierce Arrow Company a letter giving the condition of a body which it would sell at $450, which letter they showed to him, whereupon the president said: "I will take that body but I won’t take a ramshackle body;” that they then ordered the body, paid for it and caused it to be brought to Gould’s Carriage Works on Linden street in the city of Scranton the first week in December, 1910; that it was a comparatively new Pierce Arrow body in A. No. 1 condition; that immediately after the arrival of the body Mr. Teeter went to the president of the company and told him the body was there and that it was a fine body, to which the president replied "I will send the car over and have it put on;” that this body was to be taken in full settlement of the damages claimed; that a year after that Mr. Teeter in company with Mr. Welsh went to see the president with reference to the settlement and Mr. Welsh recounted in substance the former arrangement with the president and that he had said he would send his car and get the body and that in reply to this statement of Mr. Welsh the president said, “What if I did, what if I did.” This offer was rejected by the court on the ground that it was an attempt to show an unexecuted accord and satisfaction. In thus disposing of the question the learned trial judge overlooked the distinction between an agreement of compromise and an accord and satisfaction. The offer was not to prove an accord but to show that the parties had agreed to settle an existing dispute on terms mutually satisfactory. That a compromise of a disputed claim is a consideration sufficient to support an agreement of settlement is shown by a long catalogue of adjudicated cases. Such a contract is binding on the parties and can only be rescinded when they mutually agree to that effect: Hennessy v. Bacon, 137 U. S. 78; Adams v. Crown Coal and Tow Company, 198 Ill. 445; Dunham v. Griswold, 100 N. Y. 224; Galusha v. Sherman, 105 Wis. 263; Gates v. Shutts, 7 Mich. 127; Logan v. Mathews, 6 Pa. 417; Hays v. Lusk, 2 Rawle, 23; Christie v. Craige, 20 Pa. 430; Fleming v. Ramsey, 46 Pa. 252; Flegal v. Hoover, 156 Pa. 276; Fink v. Farmers’ Bank of Harrisburg, 178 Pa. 154; Sutton v. Dudley, 193 Pa. 194. The parties were competent to contract; they were negotiating in regard to a doubtful claim; there was no misunderstanding in regard to the situation nor superior knowledge of one party affecting the question of compromise, and the agreement if made as proposed to be shown rested on a legal consideration. We must assume for our present purpose that the body purchased by the defendant to take the place of the damaged one was of the kind and quality stated in the offer and contemplated by the parties in the agreement referred to. If the plaintiff through its president agreed to receive such a body in satisfaction of the claim and pursuant to such agreement the defendant bought and paid for the thing which the plaintiff agreed to accept, fair dealing requires that that agreement be enforced. The plaintiff had a claim for damages more or less doubtful in its nature. It substituted for this claim an agreement to take á car body of the same style and make in place of its injured car body and pursuant to such agreement the defendant bought and delivered that body at a place convenient for the plaintiff. If the circumstances are such as were suggested in the offer it ought not to be afterward permitted to demand money instead of the replaced car body. This was the very question decided in Christie v. Craige, supra. The case of Schwartzfager v. Pittsburg Ry. Co., 238 Pa. 158, cited by the learned trial judge turned on the fact that although a compromise agreement had been made and had been performed in part the defendant failed to carry out its most important undertaking. It is evident that it could not rely on the agreement of settlement which it had failed to perform as a defense in a suit on the original cause of action. The first assignment of error is sustained.

We are not convinced that the proposition contained' in the fifth assignment of error was admissible. It was an offer to prove that the defendant purchased a car body for $450 of the same character as that which was injured — a comparatively new body. This offer was made in mitigation of damages as appears from the argument of the learned counsel for the appellant. If it had been a proposal to prove the market value of a body of the kind and condition owned by the plaintiff before the injury we think it would have been admissible, but proof that the defendant obtained a body of that kind is by no means the same thing. If the plaintiff had an opportunity to go into the market and replace the car body evidence bearing on the market value of the thing to be bought would be competent as casting light on the extent of the whole of the plaintiff’s loss. It would not be admissible for the purpose of fixing the amount of the damage, however, as there was evidence of other injury to the car. It would be a consideration to be taken into account by the jury in determining the amount of the whole injury. We do not discover anything in the case which justifies the submission of the question of contributory negligence to the jury.

The judgment is reversed with a venire facias de novo.