Carrier & Baum v. Dilworth

[410] The opinion of the court was delivered, January 4th 1869, by Sharswood, J. The 1st error assigned is to the admission in evidence of the agreement of February 27th 1862. This agreement was under seal, and purported to be executed by one of the members of a firm. The action was assumpsit, and both in the original and the amended declaration the agreement in question was set out, not as the cause of action, but as inducement to a parol promise by the defendants to the plaintiff. Any alteration of a specialty by parol makes the whole contract parol; covenant cannot be maintained upon it; the terms of the specialty are in effect adopted, and become a part of the parol agreement: Vicary v. Moore, 2 Watts 451; Vaughn v. Ferris, 2 W. & S. 46. It follows ex necessitate that the agreement under seal was admissible, to be followed, as it was, by evidence of an extension or alteration by parol: Charles v. Scott, 1 S. & R. 294. Where an action of assumpsit lies, and the amount which the plaintiff seeks to recover appears by a writing under seal, said writing is admissible : Mehaffy v. Share, 2 Penna. R. 361. If there was a new contract by parol within the scope of the partnership, which was a subsequent and distinct question in the cause, it mattered not whether the agreement as originally executed bound the firm or not. The 2d error assigned is in admitting evidence of the price of timber in April 1863. This was objected to, because the breach of the agreement occurred, if at all, as early as June 1st 1862; and that should therefore be the time at which the difference between the contract and the market price should be ascertained. But Graham Scott had testified that “ during the spring of'1863, about April 1st, Baum called at Dilworth’s office. Plaintiff asked him what about the six rafts to fill out the contract. Pie stated he had them coming down, and would deliver them. Dilworth was satisfied with that. These six rafts were to be paid for, same as original contract, in four months from delivery.” This certainly was evidence for the jury that there had been a parol alteration and extension of the original agreement, which was by its terms to be performed June 1st 1862. The mutual promises of the parties, the one to deliver and the other to accept and pay, were ample consideration to sustain it as a new contract. The learned judge would, therefore, have erred if he had ruled out' this evidence. The 3d error assigned is to the answer to the defendant’s 1st point, “ that the contract given in evidence in this case being executed by Baum alone, is not the covenant of John Carrier.” It is unnecessary to consider whether the answer is right, as the point itself was immaterial and might have been declined. The answer did the plaintiff in error no injury. The learned judge himself, after expressing his opinion on the point presented, re [411] marked that the suit was not on the contract under seal, hut on a separate and distinct agreement by word of mouth by Baum, one of the firm, to deliver at a subsequent day the rafts which had not been delivered under the original contract, at the price therein agreed on. Whether that contract was binding as within the scope of the partnership business, was another and different question. Neither can the 4th assignment of'error be sustained. The contract declared on was not under seal, but parol, though it referred to and incorporated with it a sealed writing. The action of assumpsit could therefore be maintained. The 5th assignment is to the instruction that the jury must find from the evidence when the time limited in the contract for delivery of the timber expired. This may be considered in connection with the 6th assignment, that there was error in submitting to the jury whether there had been an extension of the contract', without evidence. I have already referred to the testimony of Graham Scott, and to one of the objections made to this testimony that it showed no consideration. As to the remaining exception taken to it, that it did not refer to the timber included in the written agreement, but to another lot, that surely was a pure question of fact to be responded to by the jurors, and not by the court. The 7th error is disposed of by what has already been said on the 2d, and the 8th was to the refusal of the court to answer a point as to the sufficiency of the declaration, which had clearly nothing to do with the trial of the issue: Haldeman v. Martin, 10 Barr 369. Judgment affirmed.