Blakeslee Manufacturing Co. v. Hilton

• Decision Date: 23 July 1897
• Docket Number: 11-1897
• Citation: 5 Pa.Super. 184
• Parties: The Blakeslee Manufacturing Co. v. Robert W. Hilton et al., as the Hilton Chemical Co., Appellants
• Court: Pennsylvania Superior Court

5 Pa.Super. 184

The Blakeslee Manufacturing Co. v. Robert W. Hilton et al., as the Hilton Chemical Co., Appellants

No. 11-1897

Superior Court of Pennsylvania

July 23, 1897

Argued April 29, 1897 [Syllabus Matter]

Appeal by defendants from judgment of C. P. McKean Co.-1896, No. 39 for want of a sufficient affidavit of defense.

Assumpsit for goods sold and delivered. Before Morrison, J.

The facts appear from the following extract of the opinion of the court below and opinion of Superior Court:

This is an action in assumpsit, brought by the Blakeslee Manufacturing Company, a corporation organized and doing business under the laws of the state of Illinois, to recover from the defendant the price and value of one steam pump alleged to have been sold and delivered free on board cars at Duquoin, in the state of Illinois. The plaintiff, in the claim filed, states the price of the pump to be $ 350, and the additional sum of $ 10.65, for freight prepaid on the same, which is to be repaid by the defendants.

The affidavit of defense admits the receipt of the pump and the payment of the freight, and does not dispute the price and value, and does not aver that the defendants refused to receive the property, nor that they ever offered to return the same. The first ground of defense attempted to be set up is that there was an express warranty that the pump would be shipped and delivered to the defendants within the time mentioned in the affidavits. Upon this question the affidavit states: " That at the time the pump was ordered he stated to Eugene McElwaine, agent for the plaintiff company, the condition in which the factory was, that it was about completed, and would very shortly be in running order, and that it was very important to said Hilton Chemical Co. that the said pump should be promptly delivered, and then and there the said Eugene McElwaine, as agent for the Blakeslee Manufacturing Co., represented to the deponent that the said pump would be delivered promptly, that the same was in stock at the works of the company in Duquoin, Illinois, and could be shipped at once upon receipt of order, and that relying upon this statement made by the said agent, as aforesaid, he gave an order for the pump, and that thereby and by reason of the promises and undertaking of the said Eugene McElwaine, there was an express promise, covenant and warranty on the part of the plaintiff that the said pump should be delivered promptly and in time to be used for the purpose for which it was ordered and for which the same was desired."

The affidavit then states in substance that the defendants believed the pump would be delivered within ten days or two weeks from the date of ordering, but it was not, in fact, delivered until six weeks or two months, and that by such delay the defendants suffered damages equal or greater than the value of the pump.

Error assigned was entry of judgment for want of a sufficient affidavit of defense.

R. L. Edgett of Berry & Edgett, for appellant. -- Time of delivery is deemed to be of the essence of the contract in law: Voorhees v. DeMeyer, 3 Barb. (N.Y.) 37; Wilson v. Roots, 119 Ill. 379; Carter v. Phillips, 144 Mass. 100.

The buyer will also have a right of action against the seller for damages for failure to deliver: Story on Sales (4th ed.), sec. 310; Phillips v. Taylor, 49 N.Y.S. 318.

The failure to fulfill a contract within a certain time may become a good ground of defense: Endlich on Affidavit of Defense, p. 417, sec. 526.

The seller is liable for any loss resulting from his failure to follow shipping directions: Wheelhouse v. Parr, 141 Mass. 593. Dwight v. Eckert, 117 Pa. 490.

When no time is specified for a delivery, a reasonable time is inferred: Benj. on Sales (6th Am. ed.), sec. 683.

What is a reasonable time depends upon the facts and circumstances of each particular case and is usually a question for the jury: 21 Am. & Eng. Ency. of Law, 531, note 2.

Where a foreign corporation does not comply with the second section of the act, its business transactions are illegal and all contracts pertaining to it are unlawful: Trust Co. v. McCann & Frazer Co., 6 Dist. Rep. 25.

An affidavit of defense is sufficient if it is set forth in words or by necessary inference therefrom, the indispensable elements of a good defense: Selden v. Neemes, 43 Pa. 421; Thompson v. Clark, 56 Pa. 33; McPherson v. Bank, 96 Pa. 135; Hunter v. Reilly, 36 Pa. 509.

Thomas F. Richmond, for appellee. -- If time was of the essence of the contract between the parties, and the defendants were not bound to accept the pump when not delivered within the time specified, they cannot now avail themselves of that ground of defense: McKay v. McKenna, 173 Pa. 581.

When the pump was delivered to the carrier at Duquoin, Ill., for the purpose of transportation, the duty of the plaintiff was performed and the transaction was complete: Com. v. Fleming, 130 Pa. 138; Bacharach & Co. v. Chester Freight Line, 133 Pa. 414; Railroad Co. v. Wireman, 88 Pa. 264.

And this even if it had been shipped c. o. d.: Com. v. Fleming, 130 Pa. 138.

As long ago as 1889 the Supreme Court held, " that a foreign corporation can contract with a citizen of this state and enforce the contract by suit in the courts has never been controverted:" Leasure v. Life Ins. Co., 91 Pa. 491.

The courts of many states have recognized the right of foreign corporations to engage in interstate commerce without interference: Gunn v. Sewing Machine Co., 57 Ark. 24; Murphy Varnish Co. v. Connell, 32 N.Y.S. 492; Novelty Mfg. Co. v. Connell, 34 N.Y.S. 717; Tallapoosa Lumber Co. v. Holbert, 39 N.Y.S. 432; American Starch Co. v. Bateman, 22 S.W. 771; Hardy v. Tomoor-Holdy Co., 3 Ohio Nisi Prius, 43; Fairbanks v. MacLeod, 45 P. 282.

Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.

OPINION

WICKHAM, J.

It is averred, in the plaintiff's statement of claim, that the contract for the pump, which gave rise to this action, was made on or about April 3, 1895; that the pump was to be delivered " free on board cars at Duquoin in the state of Illinois," that it was so delivered on or about April 16, 1895, properly marked, and on the same day the bill of lading was mailed to the defendants, that on or about May 25, 1895, it was actually received and accepted by the defendants and at the time suit was brought was in their possession and use.

No one of the above allegations is fully denied, even by implication, in the affidavit of defense, hence the truth of all must be deemed admitted. The argumentative attempt made, in the affidavit, to create the impression that the place of delivery was to be in this state, instead of in Illinois, counts for nothing. If this were the fact, it should have been squarely averred. But the defendants allege, that there was unreasonable delay, in delivery, whereby they suffered pecuniary injury. As they admit that ten days to two weeks would be a reasonable time, and fail to deny that the pump was delivered at Duquoin, the place agreed on, in thirteen days after the giving of the order, as set forth in the plaintiff's statement, we fail to see any default, in this respect, on the part of the plaintiff. The common carrier at Duquoin, to whom the delivery was made, became the defendant's agent and is answerable for the damages, if any resulted, from needless delay in transportation.

It is alleged further, however, that the delay occurred because of the plaintiff's negligent disregard of the shipping directions given it by the defendants. According to the affidavit of defense the pump was shipped or billed to " Newtown Station, McKean County, Pennsylvania," instead of " Newton Station, McKean County, Pennsylvania, via or on B., R. & P. Ry." as directed. It went first to another place in Pennsylvania, known as " Newtown," and its arrival at the defendants' factory was thus delayed. The affidavit fails to state, that there was in McKean county any place bearing the name of Newtown or Newtown station, and we therefore may conclude that Newtown was in some other county. This being the case, it follows that the delay was the fault of the carrier, the defendants' own agent, who, seeing from the marks and shipping directions that the Newtown station mentioned was in McKean county should have known, by the exercise of the most ordinary intelligence, that Newtown station, McKean county, meant Newton station, McKean county, instead of Newtown in some other part of Pennsylvania.

We may observe that, at the most, the contract only required delivery in a reasonable time. The allegation, contained in the affidavit of defense, regarding the time of delivery, is word for word as follows: " The said Eugene McElwaine as agent for the Blakeslee Manufacturing Company represented to the deponent that said pump could be delivered promptly, that the same was in stock at the works of the company in Duquoin, Illinois, and could be shipped at once upon receipt of order." All else that is said on the subject, in the affidavit, is only by way of embellishing this text. The agent did not say that the pump would be shipped promptly or at once, but that it could be so shipped. This language, no matter what the defendants understood or believed, does not sustain their theory of an express warranty as to the time of delivery.

But conceding that the place of delivery was to be in Pennsylvania, that time was of the essence of the contract, and that the plaintiff was in default, the duty of the defendants, looking at the circumstances disclosed by the affidavit, was to supply themselves with another pump, from some other source, when the one they ordered from the plaintiff failed to arrive promptly. It was not to be manufactured specially, was not, so...