Wolff Dryer Co. v. Bigler

Opinion by Mb. Justice Fell, By the original contract between the parties the plaintiff granted to the defendants the right to construct and use a machine for drying bricks, and agreed to sell them the parts of the machine and numerous appliances necessary for its use at a stated price. The buildings required were to be constructed by the defendants. After the machine was set up it was to be tested, and then accepted or rejected. If accepted it was to remain the property of the plaintiff until paid for, with the right to remove it if payments were not made as provided by the agreement. If rejected it was to be removed by the plaintiff at its expense, and all moneys which had been paid or notes which had been given were to be returned, the contract to be canceled, and neither party was to have any claim against the other. Before the machine was delivered the agreement was modified in this way: the defendants wrote to the plaintiff inquiring whether the machine would dry bricks made by the stiff mud [471] process without cracking them. In the correspondence which followed the plaintiff wrote: “You mention that should you conclude to put in an Auger machine, if we will guarantee to dry bricks made on this machine without cracking—our answer to this question is, yes.” The use of the Auger machine did not require a change in the dryer, but it required cars of a different kind, and increased the price $456. The defendants contended that the subsequent correspondence between the parties so modified the original agreement as to abrogate entirely the provisions for acceptance or rejection after test, and as to the right of the plaintiff to remove the machine if payment was not made as agreed, and that the. plaintiff became a warrantor that the machine would dry bricks without cracking them. Alleging a breach of warranty, they refused either to return the machine or to pay for it. We see no reason to doubt the correctness of the construction given by the court to the original contract and the correspondence by which it was modified. The change made by the parties went only to the extent of substituting stiff mud for soft mud in the original contract, and left all the other provisions of the contract in full force and effect. It is apparent from the contract that both parties entertained a doubt as to whether the machine would dry bricks satisfactorily. Provision was made for a test and for the removal of the machine if unsatisfactory, and each party was to bear its share of the expense of the experiment, and neither was to have a claim against the other. The correspondence, read in connection with the agreement, does not indicate an intention to change the original contract except by the substitution of stiff mud. The contention that the plaintiff could not maintain an action in this state, because it was a foreign corporation, and had not complied with the provisions of the Act of April 22,1874, P. L. 108, is without merit. It had no office or place of business in Pennsylvania, and no part of its capital was here. The machinery sold was shipped either directly from its factory in Chicago, or upon its orders given to other manufacturers. The fact that its agent came into this state and made contracts for machinery to be delivered here did not bring it within the inhibition of the act of 1874: Mearshon & Co. v. Lumber Co., 187 Pa. 12. The judgment is affirmed.