Charles E. Hires Co. v. Stromeyer

• Decision Date: 18 December 1916
• Docket Number: 72-1916
• Citation: 65 Pa.Super. 241
• Parties: Charles E. Hires Co., Appellant, v. Stromeyer
• Court: Pennsylvania Superior Court

65 Pa.Super. 241

Charles E. Hires Co., Appellant, v. Stromeyer

No. 72-1916

Superior Court of Pennsylvania

December 18, 1916

Argued October 17, 1916

Appeal by plaintiff, from judgment of Municipal Court, Philadelphia Co., Aug. T., 1915, No. 91, for defendant n. o. v. in case of Charles E. Hires Company v. Julius Stromeyer, trading as J Stromeyer & Company.

Assumpsit for breach of contract to sell and deliver sugar. The statement averred that the sugar delivered was not according to the contract was rejected and that plaintiff suffered loss by reason of being obliged to purchase other sugar in the market at an advanced price.

The facts are stated in the opinion of the Superior Court.

The case was tried by the court without a jury.

The trial judge returned a verdict for plaintiff for $ 192.70. The court in banc entered judgment for defendant for $ 320.01 n. o. v. Plaintiff appealed.

Error assigned was the judgment of the court.

Reversed.

Thomas Raeburn White, for appellant. -- The place of delivery was in Philadelphia: American Bridge Co. v. Duquesne Steel Foundry Co., 28 Pa.Super. 479; Nicholson v Taylor, 31 Pa. 128; Missouri & Illinois Coal Co. v Pomeroy, 80 Ill.App. 144.

The plaintiff was not precluded from recovering damages for breach of contract by reason of having used a portion of the sugar delivered: Philadelphia Whiting Co. v. Detroit White Lead Works, 58 Mich. 29; Smith v. Love, 64 N.C. 439; Spiegelberg v. Karr, 24 Pa.Super. 339; Baltimore Brick Co. v. Coyle, 18 Pa.Super. 186; Fogel v. Brubaker, 122 Pa. 7.

Percival H. Granger, with him J. Howard Reber, for appellee. -- The place of delivery was New York City: Dannemiller v. Kirkpatrick, 201 Pa. 218; Dennis v. Alexander, 3 Pa. 50; Scott v. Wells, 6 W. & S. 357; Miller v. Seaman, 176 Pa. 291; Dwight v. Eckert, 117 Pa. 490.

In any event the plaintiff is precluded from recovering damages by using six per cent. of the sugar after inspection: Elzea v. Brown, 59 Pa.Super. 403; Hamilton v. Kirby, 199 Pa. 466.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

TREXLER, J.

The plaintiff purchased of the defendant five hundred bags of sugar to be delivered clean and merchantable in lined, jute sacks. The sugar was furnished in unlined sacks and was found to be unclean and unfit for plaintiff's use. The sugar was returned to defendant by the plaintiff who went into the open market and bought the nearest substitute paying a higher price than was stipulated in the contract. It now brings suit for its damages. The case was tried before a judge in the Municipal Court without a jury and resulted in finding for the plaintiff which the court, the trial judge not sitting, reversed and entered judgment for the defendant.

1. The first question which presents itself is whether the contract between the parties provided for delivery in New York or in Philadelphia. An examination of the letters we think will determine the matter. The letter of the plaintiff of March 18, 1915, directs the defendant to ship the sugar as per sample to the Charles E. Hires Company's siding, Philadelphia. Price to be paid is $ 5.30 net 100 pounds f. o. b. New York. Payment is to be made upon arrival of goods and checking of weights at the Hires Company's siding. The defendant in accepting the offer confirmed these terms " payment to be made immediately upon arrival and checking of weights." The court found that this provided for delivery in New York. The price was fixed f. o. b. New York but it seems clear to us that the place of delivery was Philadelphia. The goods as per sample were to be shipped to plaintiff's siding in that city and payment made when the goods actually arrived and were checked. It is true that the rule is that delivery to the common carrier is delivery to the purchaser, but this rule will give way to the expressed intention of the parties to the contrary: Dooley v. N.Y. C. & H. R. R. R. Co., 62 Pa.Super. 237, and cases there cited.

The case of American Bridge Co. v. Duquesne Steel Foundry Co., 28 Pa.Super. 479, very much resembles the case before us. In that case the price was f. o. b. at the company's works but the delivery was to be made at East Berlin subject to the inspection of the vendee. It was held that although the price was f. o. b. cars it did not designate the place of delivery. " The vesting of the title always depends upon the intention of the parties to be drawn from the contract and the circumstances. As long as anything remains to be done as between the vendor and vendee for the purpose of ascertaining the amount and price of the article, the property and risk remains in the vendor" : Nicholson v. Taylor, 31 Pa. 128; Thompson v. Franks, 37 Pa. 327. Where the sale is by sample, the goods not being seen by purchaser until they have reached their destination, he may reject them if found not to be in accordance to the contract: Fogel v. Brubaker, 122 Pa. 7, 15 A. 692.

2. The court further held that plaintiff could not recover because it had used too much of the sugar before it returned the remainder. The trial judge found that plaintiff was entitled to reasonable time to inspect the sugar, that it used about six per cent. in testing it, that such trial was necessary to ascertain whether the fibre and lint would clog plaintiff's filters, and that when it was ascertained that the sugar was unfit for use the plaintiff promptly notified the defendant. Notwithstanding these findings the court decided that the presence of dust, lint and fibre was discernible by ocular inspection. The question is whether the trial judge had sufficient testimony before him to support the conclusion that " it was impossible to ascertain whether the fibre and dirt would clog the filters of plaintiff company so as to make the use of the sugar impossible without giving it a trial in the way plaintiff usually used sugars." The sugar may have contained dirt and was admittedly packed in unlined bags, but the plaintiff was not bound to reject it until it could ascertain whether it was injuriously affected by the failure of the defendant to ship it in good condition. We quote the testimony of Charles E. Hires on this point (after the witness had testified to the presence of lint):"

Q. -- That was noticed by you when the cars arrived?

A. -- No, sir.

Q. -- When did you first notice it?

A. -- When we started to run it through the filters.

Q. -- After the first small lot of sugar was filtered the first day, did you have a consultation with your father?

A. -- Yes, sir.

Q. -- What was the substance of that consultation?

A. -- That we attempt to use it and be...