Blessing v. Miller

• Decision Date: 05 February 1883
• Citation: 102 Pa. 45
• Parties: Blessing <I>versus</I> Miller.
• Court: Pennsylvania Supreme Court

102 Pa. 45

Blessing versus Miller.

Supreme Court of Pennsylvania.

January 2, 1883.

February 5, 1883.

January 2d 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas No. 4, of Philadelphia county: Of January Term 1882, No. 400.

John Roberts, for the plaintiff in error.

David C. Harrington (J. Ring with him), for the defendant in error.—The defendant having failed to give notice of special matter under his pleas of payment and set off with leave, etc., as required by rule of court in Philadelphia County, was not entitled to set off against plaintiff's claim his alleged damage arising from his purchase in the market of high grade bricks at a higher rate than the contract price: Finlay v. Stewart, 6 P. F. S. 183. The charge of the court is not alprinted, and this court will not reverse on a dismembered sentence: Little Sch. Nav. & Coal Co. v. French, 2 W. N. C. 718; Reeves v. R. R. Co., 6 Cas. 460. The charge must be considered with reference to the pleadings, and so considered the portion assigned for error was right: Ferry Co. v. Steamboat Co., 2 W. N. C. 453.

Mr. Justice CLARK delivered the opinion of the court, February 5th 1883.

This was a scire facias upon a mechanic's lien, filed by Willbur F. Miller, against the property of Charles A. Blessing, for bricks furnished by Miller in the erection of a certain factory building, on the corner of Montgomery avenue and Randolph street in the city of Philadelphia.

The pleas, filed by the defendant, were "non assumpsit, payment, set off with leave, etc."

The claim as filed, is stated to have been put in evidence, but the specific items, are not given in the formal bill of exceptions sealed. There is no controversy, however, that bricks were furnished, in quantity as charged in the lien. The claim is for two hundred thousand bricks at $6 per thousand, and it was admitted that the defendant had paid $950 on the purchase.

The contract for the sale and delivery of these bricks was brought about chiefly through the agency of Adam Schmunk, a brick mason employed by Blessing to construct the building. On the 2th day of December 1879, Schmunk visited the brickyard of Miller, in the interest of Blessing; Schmunk gave the size of the building, thickness of the walls, &c., and an estimate was made as to the number of bricks required, whereupon Miller agreed to furnish the whole at the rate of $6.00 per thousand. On the 20th day of December, then next, Miller called upon Blessing, and received $300, in advance, upon the contract, which was then set forth, in writing, in the words and form following, viz:

"Received, Philadelphia, December 20th 1879, of C. A. Blessing three hundred dollars, in advance, on account of two hundred and fifty to three hundred thousand bricks, to consist of salmon, stretchers and hard bricks, as he may require them, sold to the said C. A. Blessing, December 2d 1879, at $6 per thousand, but at present stored and held at my yard for him and to be delivered when required by him.

                    $300.                            WILBUR F. MILLER."
                

The contract embodied in this receipt is specific and clear: the bricks sold were of those stored at the brick yard of Miller; the quantity was estimated at from 250,000 to 300,000; they were to be salmon, stretchers and hard brick as he (Blessing) should require them, they were to be regarded as sold to Blessing on the 2d December 1879; they were to be delivered whenever required; the price was fixed at $6 per thousand, and the $300 was an advance payment. There was no specific time designated for payment of the price, but payments were in fact afterwards made, from time to time, as the bricks were delivered.

The plaintiff's claim is upon his lien as filed, but as the materials charged were furnished under the contract, embodied in the receipt, his recovery is of course dependent upon it.

The defence set up was that Miller furnished an undue proportion of the salmon bricks, an inferior grade or quality, worth from $3.50 to $3.75 per thousand, and unsuitable for some parts of the work; that when Blessing remonstrated against this he continued to send more; that he refused to deliver the hard bricks and stretchers when required, and finally ceased to deliver altogether; sold the bricks to other parties, and, demanding payment for what was delivered, gave no further attention to his contract; that, in consequence of this, the work of construction was stopped, the workmen were thrown out of employment, and, in order to complete the building, the defendant below was obliged to go into the market and buy other bricks, suitable for the purpose, at $8 to...