Morrison v. Altland, Appellant. John E. Malone, for appellee. The testimony offered by the defendant was not sufficient to establish the parol contract. Thompson v. Schock, 254 Pa. 585. The testimony was not offered on the trial to show consent under the written lease. This is a new theory which should not be considered on appeal. Oral proof to affect a written agreement must be confined to the time of its execution. Rearick's Ex'rs v. Rearick, 15 Pa. 66. Vito v. Birkel, 209 Pa. 206. February 28, 1920. Opinion by LINN, J. In this suit by a landlord against his tenant to recover money paid for the tenant's account, money loaned, for work performed, for materials furnished, for the value of produce retained by the tenant and for loss sustained because the tenant refused to feed cattle, the tenant sought to set off, among other items, one-half the amount received by the landlord for the sale of certain hay and straw. The testimony offered to sustain this item of set-off was excluded as an attempt to modify the written lease by insufficient evidence. The lease was drawn by the landlord himself, was dated March 31, 1910, and specified no term. The tenant entered several days before the execution of the written lease and surrendered possession about two years later. The provisions of the lease now important are the following: "To be farmed on the halves. . . . No hay, straw or anything of the kind to be removed from the farm without the consent of the said Morrison . . .", the landlord. When the tenant took the farm there were on it about six tons of hay and ten tons of straw, increased, when he left, by about sixteen and twenty-five tons of each respectively; this excess was sold by the landlord about a week after the tenant left, and one-half the amount received therefor raised the disputed set-off. Shortly before surrendering possession, the tenant wished to bale the excess hay and straw, but the landlord, as the tenant testified, "forbade me to do it. He said if I got a hay press in there he would sue them and me too, and I couldn't get anybody to do it. I had asked him to cut the mow in two and I would take half of it and let him have the other half. He wouldn't let me." On the day when the tenant moved from the farm, the landlord, in the tenant's words, ". . . asked me about settling. I said, 'It don't suit me to-day; I am moving, but I will come up on Saturday'; I said to settle everything hay and straw.' He said, 'Yes, sir.' I went up on Saturday. He wouldn't give me no credit for any hay or straw. He said that belonged to him. He said I wasn't on the place." Morrison v. Altland, Appellant. The question now is, the hay and straw having been produced "on the halves" but not being removable "from the farm without the consent of the said Morrison . . .", did Morrison consent? If he did, and then sold the hay and straw himself, the tenant is entitled to credit accordingly. The evidence offered by the tenant was his own testimony to the effect that on or about March 22, 1910, he and his brother had an interview with the landlord and agreed upon the terms on which the farm should be rented. He testified that the landlord said, with reference to the hay and straw, that he "was just to leave as much when I (he) moved away as there was there." On the 3rd of April, being then in possession, the lease was presented for execution and he called the landlord's attention to the provision requiring assent to the removal of hay and straw, stating that that was not "what we talked over and the landlord explained he had inserted that provision so that he could show it ". . . to the next farmer when I moved away," repeating, however, that the tenant I could have half the hay and straw when I (he) moved away. . . .' The tenant also offered to prove by his brother that he was present at the interview of March 22nd and that the landlord agreed that the tenant should have the right to divide and remove the excess as above described. The testimony of the tenant was stricken out, and an objection was sustained to receiving the testimony of the tenant's brother. Farming "on the halves" meant that one-half of the hay and straw produced belonged to the tenant, though under the lease he could not remove it without the landlord's consent; if the landlord consented, proof of that fact did not constitute variation or contradiction of the lease; it showed compliance with the condition stated in the lease to be requisite to the removal of the tenant's hay and straw. Did the landlord consent? The tenant testified that he consented when the lease was executed after possession was taken; he also testified that in the presence of his brother, on March 22nd, before taking possession, the landlord also consented, and it was proposed by the evidence of the tenant's brother to corroborate the tenant as to the assent then given by the landlord. It was proper to prove the consent of the landlord and the excluded testimony was sufficient, if believed, to establish it; the mere incident that consent was given when the lease was executed and delivered is immaterial; consent then given would no more constitute a variation of the paper than if the landlord had consented immediately after it was delivered. Nor, under the circumstances, was the testimony of the tenant and of his brother to the landlord's consent given on March 22nd irrelevant. It corroborated the tenant's evidence of consent at the time of the execution and delivery of the lease: Croyle v. Cambria L. & I. Co., 233 Pa. 310, at 316; Gas and Oil Co. v. Glass Co., 213 Pa. 183, at 189. The assignments of error are sustained and the judgment is reversed with a venire facias de novo. Court of Common Pleas of Lancaster County Clifton Forge Milling and Feed Co. v. B. Frank Eby, trading as Contract of sale-Delay in shipment—Rescission by vendor-Liability of vendor-Affidavit of defense-Sufficiency of. In an action to recover the plaintiff's loss by being compelled to buy in the open market at an increased price two car-loads of bran ordered from the defendant but which he failed to deliver, the statement set forth that the goods were ordered and the order accepted in writing providing that shipment was to be made within sixty days at the Government price when shipped but subject to delay for causes beyond the defendant's control, and that the defendant failed to deliver the goods within sixty days and subsequently wrote the plaintiff that he had canceled the order but offering to send the goods at the then prevailing market price, which offer the plaintiff refused. The affidavit of defense averred that the defendant was prevented from shipping within sixty days by action of the United States government in commandeering the bran, but did not deny that he had subsequently canceled the order, and averred a market price less than that specified in the statement. Held, that the affidavit was insufficient to prevent judgment for the plaintiff loss at the market price admitted. The defendant was protected by his contract from liability for delay in shipment but was not justified in cancelling the contract. Rule for judgment for want of a sufficient affidavit of defense... August Term, 1919, No. 117. Geo. Ross Eshleman, for rule. John A. Coyle, contra. December 27, 1919. Opinion by HASSLER, J. In its statement the plaintiff alleges that he bought two carloads of bran from the defendant, which the defendant confirmed in writing. on October 7, 1918. The confirmation is as follows: "We confirm sale to you today through office two cars 100 X sacks white bran at government price. When shipped deliver Clifton Forge, Va. via C. & O. shipment within sixty days, our option. Terms draft bill of lading attached, payable on arrival of car. If this is not exactly as understood by you advise immediately." On the acceptance is printed the following: "Subject to delay account car shortage, embargoes, or other causes beyond control." This acceptance is the contract between the parties reduced to writing, because in it, it is stated to be the contract, and the plaintiff did not advise the defendant that it was not exactly as understood by it. The clause subject to delay, &c., is part of the contract. The plaintiff further alleges that the defendant failed to deliver the bran as agreed upon, and that on December 20, 1918, after the expiration of the sixty days in which the defendant agreed to deliver it, the defendant wrote him that said order or agreement was canceled, and offered to send it bran at the then prevailing market price. The plaintiff at once notified the defendant that he would not consent to a cancellation of the contract, but would accept the goods at the government price prevailing within said period of sixty days, and would hold de VOL. XXXVII, No. 25 Clifton Forge Milling & Feed Co. v. B. Frank Eby, trading as Jonas F. Eby & Son. fendant liable for his violation of the contract. The plaintiff further alleges that because of plaintiff's failure to ship the bran as agreed upon, it then went into the market and bought two carloads of the same quality of bran called for in the agreement, each car containing thirty tons, for which it paid $55.00 a ton, the then prevailing market price of the same. The plaintiff also alleges that the government rule was that each car should contain thirty tons, that the government's price for the quality of bran called for was no more than $36.00 per ton during the sixty days immediately following October 7, 1918. In his affidavit of defense the defendant admits the making of the contract, and alleges that he was delayed in shipping the bran because the United States Government had commandeered all bran, and he was unable to obtain it to ship to the plaintiff during the sixty days between October 7 and December 7, 1918. He does not deny that he cancelled the contract on December 20, 1918, and offered to substitute a new one for it. He denies that there was a government rule requiring each car to be loaded with thirty tons, but says the average load of a car was twenty tons. He denies that the government price of bran between October 7 and December 7, 1918, was $36.00 a ton, and avers that the said price was as high as $38.00 and $39.00 per ton. He denies that the market price after December 20, 1918, when the contract was broken by him, was $55.00 per ton, but alleges that it was only $48.50. The defendant having agreed to deliver bran within sixty days, was bound to do so. He protected himself for delay in shipment by a provision that the acceptance of the order was subject to delay on account of car shortage, or embargoes, or other causes beyond his control. This saved him from any liability for delay in shipping the bran, but did not justify him in cancelling the contract. He says he notified the plaintiff that he was willing to deliver the bran at the then prevailing market price, but the plaintiff refused to accept it. He does not deny plaintiff's allegation that he cancelled the contract on December 20, 1918. This offer, therefore, was an offer to make a new sale, or contract, which does not appear to have been subject to the conditions contained in that of October 7, 1918, as to quality of bran, where it was to be delivered, and the terms as to payment. This offer in our opinion, therefore, did not relieve the defendant from liability to make good any loss sustained by the plaintiff by reason of his, the plaintiff's, having broken the contract. The parties differ as to what the loss amounted to. In ascertaining what amount the plaintiff is entitled to judgment for, in this proceeding, we must take the allegations of the affidavit of defense as true. Plaintiff alleges that the cars under the government rule must contain thirty tons. Defendant says only twenty tons. That would make the amount sold forty tons. Plaintiff alleges the highest government price during the term of the contract for this grade of bran was $36.00. The defendant alleges that it was between $38.00 and $39.00. The plaintiff alleges that the market price at or immediately after December 20, 1918, was $55.00 per ton, the amount he paid for it. Defendant says it was but $48.50 per ton. Clifton Forge Milling & Feed Co. v. B. Frank Eby, trading as Jonas F. Eby & Son. The plaintiff is entitled to judgment for the amount of his claim as shown by defendant's figures. This amount is the difference between the highest government price during the term of the contract, viz., $39.00, and the prevailing market price after December 20, 1918, viz., $48.50, or $9.50 on each ton, and as the amount which should have been shipped, according to the defendant's statement, is forty tons, the amount of plaintiff's loss would be $380.00 with interest from December 20, 1916, to date, amounting to $23.24, making a total of $403.24. The rule for judgment is, therefore, made absolute, and judgment is entered against the defendants for $403.24 for want of a sufficient affidavit of defense, with leave to the plaintiff to proceed to recover the balance of his claim. Rule made absolute. Superior Court of Pennsylvania Agricultural Trust Co., Appellant v. J. Edward Shaub. Promissory notes-Warrants to confess judgment signed by both maker and endorser-Guaranty-Entry of judgment—Amendment. Where the payee in a promissory note containing a confession of judgment executed on the same day an agreement on its back assigning the note to a bank, guaranteeing payment, and confessing judgment for the amount, his undertaking with the bank is collateral in its nature and effect and it is error for the prothonotary to enter a judgment on the note against both the maker and endorser jointly. Such judgment is wholly unauthorized and nugatory as against the endorser whether founded on either or both the warrants and could not be amended by setting out judgment as to him to a separate number and term, but a separate judgment may be entered against the endorser on the warrant contained in his endorsement which was not exhausted, as the first judgment must have been entered on the maker's warrant alone. The prothonotary in entering such judgment does not act as an officer of the court but solely by authority of the Act of 1806, and must follow its provisions and enter on his docket the date and tenor of the instrument on which it is founded. But one judgment can be entered on a single warrant. Where a warrant has been executed in substantial accord with its terms but the manner of its execution has been irregular, the court can amend the record so as to conform with its terms. Appeal No. 95 of October Term, 1919, from judgment of C. P. of Lancaster Co. to November Term, 1918, No. 59, striking off judgment entered by plaintiff against defendant on a warrant of attorney. Error assigned was action of the Court below in striking off the judgment. For opinion of the Court below, see 36 LAW Review 82. The judgment was stricken off because the prothonotary had entered judgment jointly against the maker and the endorser on a judgment note containing also a warrant of attorney to confess judgment on the back of the note, on the ground that he had no power to enter a single judgment on two separate powers of attorney, and the judgment could not be separated as to the defendants and a separate judgment |