DANIELS CO., CONT., INC. v. NEVLING, 385 Pa. 276 (1956)

122 A.2d 814

The Daniels Company, Contractors, Inc., Appellant, v. Nevling.

Supreme Court of Pennsylvania.April 20, 1956.
May 21, 1956.

Contracts — Terms — Construction — Option or agreement to purchase chattel.

1. In this declaratory judgment proceeding in which it appeared that the defendant purchased a coal-washing system under the terms of a written agreement which contained the provision, under the subheading “Auxiliary Agreements”, that “The Contractor agrees to supply the Purchaser with two additional DMS Washing Systems at the Contractor’s cost plus 10% within 24 months of the date of this agreement,” it wa Held that the court below had properly construed the contract as a whole as not imposing upon the purchaser (defendant) any obligation to purchase the two additional systems but as giving him an option to do so. [277-8]

Appeals — Practice — Briefs — Statements not contained in record.

2. A brief filed in the Supreme Court should not include any statement of factual matters not appearing of record. [277-8]

Page 277

Before STERN, C. J., JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

Appeal, No. 171, Jan. T., 1956, from judgment of Court of Common Pleas of Clearfield County, Sept. T., 1955, No. 891, in case of The Daniels Company, Contractors, Inc. v. James K. Nevling, Trustee. Judgment affirmed.

Same case in court below: 5 Pa. D. C.2d 314.

Proceeding upon petition of plaintiff for declaratory judgment upon a written contract.

Findings and judgment thereon for defendant, opinion by PENTZ, P. J. Plaintiff appealed.

Carl A. Belin, for appellant.

Robert V. Maine, with him William T. Davis and Nevling Davis, for appellee.

OPINION PER CURIAM, May 21, 1956:

The sole question in this case is whether an additional provision in a written contract for the sale and purchase of a coal-washing machine (which was constructed, accepted and paid for) constituted an option or a definite undertaking on the part of the buyer to purchase two additional machines within a specified period. The learned court below, in an opinion to which we can add nothing, construed the provision to be an option, which the buyer never exercised. The judgment will therefore be affirmed on the opinion of President Judge PENTZ reported in 5 Pa. D. C.2d 314.

In view of the action which we thus take, the appellee’s motion to suppress portions of the appellant’s brief, which was renewed at bar, becomes moot and will be denied pro forma. We are not to be considered,

Page 278

however, as approving the appellant’s inclusion in its brief of factual matter not appearing of record. The action was instituted on the appellant’s petition for a declaratory judgment to which an answer with new matter was filed, and the controversy was disposed of, without testimony, on the appellant’s motion for judgment on the pleadings. It is patent that the appellant’s brief contains much extraneous matter which should not have been included therein.

Judgment affirmed.