Dougherty v. Briggs

79 A. 924, 231 Pa. 68, 1911 Pa. LEXIS 794

Opinion

Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit for money had and received by the defendants for the use of the plaintiff, and the right to recover depends on whether the plaintiff released his “equity” in the five houses created by the agreement entered into between him and Bihlmaier in June, 1906. The question was submitted to the jury and there was a finding in favor of the plaintiff and a verdict for the amount of his claim less certain carrying charges. The court, however, entered judgment for defendants non obstante veredicto under the act of 1905 on the ground that certain language in the letter of November 26, 1907, of Mr. Brooks, the treasurer of the trust company, to plaintiff’s counsel “was a distinct offer that was accepted by Dougherty doing the work and taking the money. This acceptance is fatal to his present claim.” The plaintiff has appealed, and assigns for error the action of the court in entering judgment for the defendants.

We cannot agree with the learned court’s conclusion in holding that the letters constituted the contract between the plaintiff and the defendants. We think the agreement was partly in writing and partly in parol, and that all the evidence should have been submitted to the jury to determine the contract between the parties. This having been done and the jury having found in favor of the plaintiff, judgment should have been entered on the verdict.

The burden was on the defendants to show that the plaintiff had released or waived his claim on the five houses in which he was given an “equity” by the contract between him and Bihlmaier. They attempted to meet the burden by the letters which passed between the parties in the latter part of 1907. The first two letters, under date of November 26, 1907, cannot be construed to be a contract of any kind. Mr. Wood’s letter was a proposal that his client would complete the work for $2,900 upon the acceptance of the proposition and the writing of a letter agreeing to subrogate Dougherty to defendants’ rights to proceed against Bihlmaier’s bondsman for damages arising out of his default on the building contract. Mr. Brooks, in his reply of the same date, did not accept the proposition in its entirety and thereby create a contract between the parties. He agreed to pay Dougherty $2,900 for the completion of the work, but refused to subrógate him to the rights of the trust company to proceed against Bihlmaier’s bondsman. The letter then proceeds: “All that they will agree to do is to pay Mr. Dougherty $2,900 for the finishing of his contract, and retain any moneys that may arise from the sale of the properties and applicable to Mr. Bihlmaier’s account, over and above the indebtedness due the Tradesmen’s Trust Company, to be prorated among the various subcontractors in proportion to the amount of claims still due them.” It will be observed that Mr. Wood’s letter is a proposal to complete the work on certain specific terms. Mr. Brooks accepts some and rejects others of those terms, and submits additional terms. It is apparent, we think, that the proposals and counterproposals in these letters did not create a contract. When it is sought to establish a contract by letters which pass between the parties, containing proposals, answers and counterproposals, it must be made to appear that at some point in the correspondence there was a definite and unqualified proposal by one party which was unconditionally and without qualification accepted by the other party. In other words, the minds of the parties must come together on all the essential terms of the alleged contract. This is the established doctrine, and is recognized in our cases: Slaymaker v. Irwin, 4 Whart. 369; Allen v. Kirwan, 159 Pa. 612. In the former case Mr. Justice Sergeant, delivering the opinion, quotes with approval the rule announced by Mr. Chitty in his General Practice as follows (p. 380): “The whole terms of the contract when in writing need not be expressed on the same paper or documents, but may be collected from several letters containing proposals and alternate agreements between the parties: but then the last communication, must be a distinct and unqualified assent, to an equally clear proposal; and if the last letter suggest any new or further proposition, requiring the assent of the other party, or some communication from him to complete the transaction, then no contract or agreement is constituted.” 1 Chitty, Gen. Pr. 118.

It is equally clear that Mr. Wood, in his letter of December 11,1907, the third of the series, did not agree to accept the counterproposal contained in Mr. Brooks’s letter by which, it is claimed, that Dougherty released or waived his equity in the five houses. On the contrary, the letter .distinctly rejects the proposition and declares that Dougherty will assert his “equity” against Bihlmaier, the trust company and Sutton, the surety. It says: “Notwithstanding the terms of your letter of November 26th, I desire to state, that Mr. Dougherty will use all legal means in his power to secure for himself his full rights against Mr. Bihlmaier, the Tradesmen’s Trust Company and Mr. Sutton, the surety. I further desire to state, that, upon behalf of Mr. Dougherty, we will endeavor to hold the Tradesmen’s Trust Company to. a strict accountability in the matter of the disposition of the houses, and I would suggest that they shall not be sold for any sum which will not net an amount sufficient to pay, inter alia, my client.”

The proposition contained in the Brooks letter that Dougherty should complete the work is referred to by Mr. Wood in his letter of December 11 in the following language: “At this time, I simply beg to advise you I have instructed Mr. Dougherty to complete his work, in accordance with the terms of the agreement entered into between us.” What were the terms of the agreement entered into between Wood and Brooks? As pointed out, they are not contained in the written correspondence. It consists of proposals and counterproposals, and discloses on its face that it was not the entire contract between the parties. It is apparent that we must look beyond the correspondence, and invoke the assistance of oral testimony to enable us to ascertain “.the terms of the agreement entered into between” Wood and Brooks in accordance with which Dougherty completed the plumbing of the Bihlmaier buildings. It must be assumed that the trust company accepted the terms of that agreement, as it paid $2,900 for the completion of the work, and it failed to reject those terms in its letter of December 20, 1907, the fourth of the series, replying to Mr. Wood’s letter of December 11. The letters disclose on their face that they did not constitute the whole agreement, and the learned court properly admitted oral testimony to show the parts of the agreement referred to but not given in the correspondence. In this there was no error, as is held in many cases: Holt v. Pie, 120 Pa. 425; Schwab v. Ginkinger, 181 Pa. 8; Selig v. Rehfuss, 195 Pa. 200; Anderson v. Surety Co., 196 Pa. 288. In the Schwab case, Green, J., delivering the opinion, says (p. 14): “It is evident, therefore, that the whole of the actual contract between the parties, being partly in parol and partly in writing, must all be considered, in order to determine what the contract really was. The principle that a contract which is partly in writing and partly in parol becomes all parol is too familiar to require the citation of authorities. But in this case the application of the written paper to the subject of contention requires the help of the parol testimony. . . . With this testimony before the jury the question would be, What was the contract between the parties? ”

The defendants offered no parol testimony and relied on the letters which they put in evidence. Bihlmaier had defaulted on his contract, and there were $1,150 then due, and $1,900 which would fall due as the work progressed, or $3,050 in all, in addition to the $2,600 “deferred payments,” secured by the “equity” in the five houses. Dougherty had given a bond for the faithful performance of his contact, and of course had to finish the plumbing work. It was under these circumstances that the trust company took charge of the operation, and Dougherty was brought in contact with the company. Mr. Wood’s testimony shows that he, as attorney for Dougherty, had several interviews with Brooks, representing the trust company, in regard to the plaintiff’s claim and the completion of the work. It is shown that Wood and Brooks went over the work that remained to be done on the operation and concluded that $2,900 would about cover it. Brooks then told Wood, according to the testimony, that if Dougherty would go on and complete the work according to the specifications, the company would pay Dougherty the $2,900 when the work was finished. Wood said to Brooks that this was satisfactory and he would write him a letter to that effect, which was the letter of November 26, 1907. Wood had some interviews with Brooks between the date of this letter and that of December 11, 1907. In these interviews he told Brooks he wanted his claim in the houses assured and that he “intended to look for those ‘equities’ both to Mr. Sutton, the original guarantor, to the Tradesmen’s Trust Company, and to Mr. Bihlmaier,” and asked Brooks for a letter assuring his claim. Brooks was noncommittal on the subject. Failing to obtain this assurance, Wood wrote the letter of December 11. He testifies that Brooks never requested him to surrender Dougherty’s “equities” in the five houses and “it was never intended that we should.” He further testified that the $2,900 payment did not include the amount due by Bihlmaier to Dougherty, called the “equity,” and was not considered in the arrangement with Brooks. Plaintiff testified that he understood that he was to receive the $2,900 and also the “equity” in the five houses.

It will be observed that the letters themselves do not show any express release or renunciation of the “equity” held by Dougherty in the five houses secured by his contract with Bihlmaier. Mr. Wood’s first letter, by its request for subrogation, clearly shows that Dougherty claimed something beyond the $2,900. Conceding that the effect of the last paragraph in Mr. Brooks’s letter of November 26 would be to waive Dougherty’s “equity” in the houses, as held by the learned court below, there was no acceptance of that proposition by the plaintiff, either in writing or by parol. The letter of December 11 expressly negatives any thought on the part of Dougherty of renouncing his right to this “equity” in the houses. The parol testimony was ample to justify the jury in finding, as they did, that Dougherty did not waive or intend to waive his claim or lien on the five houses, and that the contract, as disclosed by the letters and the parol testimony, was simply that Dougherty should complete the plumbing work for $2,900 to be paid to him by the trust company as the work progressed. When the circumstances of the case, existing at the time of Bihlmaier’s failure, are considered, it is unreasonable to suppose that Dougherty agreed to waive his claim on the five houses. He had at that time done work on which there were due and unpaid $1,150, and work of the value of $1,900 was yet to be done to complete the contract, or $3,050 in all, beside the $2,600. If the contention of the defendants be correct, he agreed in consideration of the payment of $2,900 to do the balance of the work and also release his claim for $2,600. Such a proposition would certainly not present itself very favorably to the judgment of a practical business man. The trust company was obligated to complete the buildings, and Dougherty was required by his bond to complete the plumbing in accordance with his contract. Each party, therefore, was required to complete his contract. There is no apparent reason why Dougherty should be compelled to waive or lose' his claim of $2,600. He was not a defaulter in any respect, and was entitled, at the time he made his contract with the Tradesmen’s Trust Company, to receive the balance due him on the work as it progressed, and, in addition thereto, the $2,600 which was secured by his “equity” in the five houses. The trust company was not in a position to demand that he release either the houses or Bihlmaier from any part of his claim.

If it be contended that Mr. Brooks’s offer in his letter of November 26, 1907, was accepted by the conduct or acts of the plaintiff, it would still be a question for the jury whether such conduct or acts amounted to an acceptance. The contract would have to be ascertained from the letters and the acts of the parties, and in such case the question is for the jury and not for the court: McClure v. Times Publishing Co., 169 Pa. 213.

We think it was error for the learned court below to enter judgment for the defendants notwithstanding the verdict, and, therefore, the judgment is reversed, and the court below is directed to enter judgment on the verdict for the plaintiff and against the defendants.