Keystone Surgical Supply Co. v. Bate

Opinion by Mb.. Justice Mitchell, This case was unfortunately tried by the learned judge below on the erroneous theory that the contract between the parties was made on February 23,1894. The facts were that at a meeting of the directors of the plaintiff company held on that day, a proposition was submitted by defendants embodying the substance of the agreement on the subject-matter concerned and that proposition was accepted by a vote of the directors. It may be conceded that the offer and acceptance amounted to a meeting of the minds of the parties and would be sufficient to constitute a contract between them if they so understood and intended. But where parties to an arrangement of this kind show either by express words or by their action that they regard it as preliminary only, and to be put into final shape thereafter, and subsequently execute a formal instrument in writing, the latter is the only contract, and the preliminary steps, however elaborate, go into the category of mere negotiations leading up to the final result. This is always the presumption of the law where a written contract is made, and in the present case it is rendered conclusive by the circumstances. The meeting by a separate resolution directed the secretary to notify the defendants of the acceptance of their proposal, showing knowledge that something more than the mere acceptance was necessary to complete the contract. Subsequently on March 16, the written contract was executed and it embodied some provisions that were not in the proposal or the acceptance, such as the agreement of the defendants to build according to the specifications submitted to and accepted by the plaintiff, and the stipulation by the plaintiff that the mortgage it was to give in payment should be a purchase money mortgage and payable in five years. These provisions it is [575] true are in harmony with the prior arrangement and are merely supplementary to it, but if they had been in any way in conflict they must have prevailed as the final agreement of the parties. On the undisputed evidence therefore the jury should have been instructed that the contract was the written instrument of March 16. There was error also in the manner of submitting to the jury the question of possession. The plaintiff claimed to be the owner of the land, as having bought and paid for it, and the defendants were contractors for erecting a building upon it. If, therefore, plaintiff as owner was in peaceful possession, even though the contract time for delivery had not yet arrived, the contractor had no authority to dispossess it, or to inte:fere with the possession further than was necessary to enable him to complete his work, and a fortiori, none, if as appellant contends, the work was in fact completed a week before the dispossession took place. On this subject it was said by our brother Dean in the former case 187 Pa. 460, 468, “ But, it is argued, the company did not perform its contract with Bate & Son by a delivery or tender of the mortgage; admit it; but what right did that give building contractors to eject the owner from the peaceable possession of his own premises ? A mere breach of covenant confers no such remedy on the wronged party and if the latter adopts it, he is liable to an action in damages.” The question for the jury therefore on this branch of the case was simply the fact of plaintiff’s possession, and the qualification that it was there with notice that what it was doing was at its own risk to which prominence was given in the charge, was wholly immaterial. The charge and some of the answers to the points moreover are fairly open to the objection that they minimize the plaintiff’s claim and tend to mislead the jury by treating the case as an ordinary action for contract price or on quantum meruit in which the discussion of fair profit and differences in payment by mortgage or in cash may be relevant. No doubt the learned judge was largely influenced by his view that the contract was complete on February 23, for confining the evidence to matters prior to that date, plaintiff’s case was meager. But defendants are sued on the ground of fraudulent representations, and concealment of facts which good faith and their position of quasi [576] trust required them to disclose. This is the main issue and it should be put before the jury with a full explanation of the law, and an open door to all evidence fairly bearing on the question. Judgment reversed and venire de novo awarded.