Mildren v. Pennsylvania Steel Co.

90 Pa. 317, 1879 Pa. LEXIS 251

• Court: Supreme Court of Pennsylvania
• Decided: October 6, 1879
• Status: Published

Opinion

Mr. Justice Mercur

delivered the opinion of the court,

This is an action to recover for certain bottoms manufactured and delivered by the plaintiff. In the manufacture of steel, the iron is melted in a cupola, and run into a receiver. Then a blast of air is forced through a perforated bottom, “ decarbonizing and oxidizing the molten iron.” The action on the bottom by the blast is very destructive, and the object of the experiment in making the bottoms in controversy, was to create some that would endure longer than those previously used.

The main question in the case relates to the alleged contract under which the plaintiff claims the bottoms were manufactured. A conversation relating thereto was had, in which the plaintiff, Mr. Bent, superintendent of the company defendant, and Mr. Golding, superintendent of the Bessamer department, all participated. The evidence is conflicting as to how far Mr. Bent took a part in the negotiation, and also as to the terms of the agreement. A written memorandum was made at the time, by Mr. Golding, setting forth the terms on which the plaintiff would furnish the bottoms. It was drawn in the form of an agreement, -but was not signed by any person. The witnesses differ as to the purpose for which it was made. The plaintiff understood it to embody an agreement between him and the defendant, and that, therefore, it was handed to him to keep as evidence thereof. Mr. Bent says it was drawn at his instance and for his future action and guidance, and not for the plaintiff, and that he did not give it to the latter. On the trial it was produced by the plaintiff, and given in evidence. Having been drawn during the negotiation between the parties, in regard to the very subject-matter in controversy, it was a question for the jury, under the whole evidence, whether it contained the terms of an agreement between the parties. If it was not delivered to the plaintiff, that fact of itself did not destroy all its effect as evidence of a contract therein recited. The learned judge, therefore, erred in saying to the jury, “ If it was not a contract delivered, then it amounts simply to nothing; it is a paper that ought to have no weight in the present case.” It was some evidence of facts stated during the negotiation. They were, at the very time, reduced to writing by a person taking part in the negotiation, at the instance and in behalf of the defendant. The memorandum did then amount to something, and was entitled to some weight in ascertaining what the parties understood, and what they did at the time of the negotiation. It was also error to say to the jury, when the plaintiff, “ talked with Mr. Bent, we have no proof of any arrangement at all.” If the evidence of the plaintiff is believed, Mr. Bent did assent to the alleged agreement as set forth in the written memorandum. In so far as the portions of the charge covered by the fourth and fifth assignments are in conflict with the views we have expressed, those assignments are sustained. We discover no substantial error in the remaining assignments.

Judgment reversed, and a venire facias de novo awarded.