F.B. Fogel & Co. v. Brubaker
| Decision Date | 01 October 1888 |
| Docket Number | 311 |
| Citation | 122 Pa. 7,15 A. 692 |
| Parties | F. B. FOGEL & CO. v. J. S. BRUBAKER |
| Court | Pennsylvania Supreme Court |
Argued May 16, 1888
ERROR TO THE COURT OF COMMON PLEAS OF LANCASTER COUNTY.
No. 311 January Term 1888, Sup. Ct.; court below, No. 57 October Term 1885, C.P.
On October 19, 1885, an appeal was filed by the defendants from the judgment of a justice of the peace in favor of J.S Brubaker against F.B. and R.J. Fogel, trading as F.B. Fogel & Co., for $195.43. The narr printed in the paper books (whether it was the original filed on August 7, 1886, or an amended narr filed on October 24, 1887, was not indicated) complained:
For that whereas the said defendants on the 22d day of August A.D. 1884, at the county aforesaid, had bought of the said plaintiff 598 40-60 bushels of wheat to be delivered in the cars at Millway Station, on the Columbia and Reading railroad, in said county, as soon thereafter as possible, and to be shipped to Ashland, Pennsylvania, at and for the sum of one dollar for each bushel thereof. And the said plaintiff, then and there, to wit, the same day and year, at the county aforesaid, upon himself did assume, and to the said defendants then and there faithfully promised to deliver and have said wheat shipped as aforesaid, and in compliance with said promise on the 25th day of August, A.D. 1884, did deliver and ship to said defendants to Ashland, Pennsylvania, said 598 40-60 bushels of wheat; the aforesaid defendants then and there, to wit, the same day and year first aforesaid mentioned, upon themselves did assume, and to the said plaintiff then and there faithfully promised to pay him the sum of one dollar for each bushel of wheat when the same was delivered as aforesaid. Nevertheless, etc. The defendants pleaded, payment, payment with leave, etc.
At the trial on December 7, 1887, the following facts appeared:
J. S. Brubaker, the plaintiff, was a miller engaged in buying and selling grain at Millway, Lancaster county, and on August 17, 1884, made a parol contract to sell to Fogel & Co., doing business at Allentown, Pa., "1 car-load strictly No. 1 long-berry red wheat, at $1.00 per bushel on track at Millway." On August 20th, the defendants wrote directing the plaintiff to load as near 600 bushels as possible and ship to Ashland, Pa. On August 25th, the wheat was shipped to Lessig & Co., Ashland, and billed to the defendants, upon whom the plaintiff drew at sight for the value, bill of lading and freight bill attached to draft. On August 26th, the defendants wrote to plaintiff that the car of wheat was at Ashland, but it was musty and their customer refused to take it: "We cannot pay your draft, and cannot pay you full price for same." The plaintiff replied, August 27th, "I can take an oath that the wheat was all sound when loaded, with the exception of about 100 bushels that was at sweating, and probably gave it a little smell on handling it; that all came on top, it will be better below." On August 28th, the defendants wrote plaintiff, saying inter alia: "When we received word from our customer that the car of wheat was out of condition and was damp, we at once have sent our agent to see same and advise him to compromise with our customer, for we knew that if he did not receive it, we would have to lose heavy, because it would have to be reshipped to some other point at a local rate, and would have to sell it for musty wheat, and being wheat could be bought for much less money we tried to get out the best way possible. We therefore make a deduction of five cents per bushel or $29.90. Now you can make another draft on us for the amount of your bill, less the above amount, $29.90, and attach a receipt in full for car No. 9889. . . . However, we have made an arrangement with our customer that in case you should want the wheat that he would reload it for you and then leave it for your disposal. You can therefore see at once that he was not anxious to have it at the deduction made him. If you want the wheat answer at once and we will advise our customer to load the same wheat; he has it all in one bin and he is willing to reload it, if we cannot settle with you as per statement. . . .
The plaintiff then drew upon the defendants for the value of the wheat at 95 cents per bushel, and this draft being unpaid, on September 6th, he wrote defendants: The wheat was returned to plaintiff who subsequently sold it at 88 cents, and in this suit claimed to recover the difference between the value at that rate and the value at 95 cents, together with the freight between Millway and Ashland and return, expenses of loading, waste, protest charges paid, etc.
Evidence was given upon both sides as to the condition of the wheat when shipped to Ashland.
The court, LIVINGSTON, P.J., charged the jury as follows:
The testimony of Mr. Brubaker, as well as Mr. Fogel, is that Mr. Brubaker received an order from Mr. Fogel for Fogel & Co., to furnish and deliver to them one car load strictly No. 1 long-berry red wheat, sound, on the track at Millway, which order he agreed to fill, for which wheat they were to pay him $1.00 per bushel. In pursuance of this order and his undertaking, Mr. Brubaker did furnish and place in the car on the track at Millway, Lancaster county, 598 40-60 bushels long-berry red wheat, and immediately notified defendants that he had done so, and drew on them for the price, and they received the draft. They refused to accept it, and notified Mr. Brubaker that the wheat was not what he had contracted to furnish, and they refused to accept it.
With reference to contracts of this character: If a man buys an article for a particular purpose made known to the seller at the time of the contract, and relies on the skill and judgment of the seller to supply what is wanted, there is an implied warranty that the thing sold will be fit for the desired purpose. Where an order is given, and the party giving the order does not see or examine the thing ordered, the party accepting the order is bound to furnish the article ordered, or the party to whom it is sent is under no obligation to receive it.
When a vendor sells an article by a particular description, it is a condition precedent to his right of action that the thing which he offers to deliver, or has delivered, should answer the description. If this condition be not performed the purchaser is entitled to reject the article, or if he has paid for it, he may recover back the price as money had and received to his use. The right to repudiate the purchase for non-conformity of the article delivered, to the description under which it was sold, is universally conceded, and it comports with sound legal principles, to treat such engagements as conditions in order to afford a purchaser a more enlarged remedy by rescission, than he would have on a simple warranty; and, as an inspection of the goods is necessary to enable the buyer to ascertain whether they answer the description by which they were sold, it follows that a seller is bound to give the buyer an opportunity to make such inspection, and an acceptance by a buyer for that purpose will not be a waiver of his right to reject, if the goods do not answer the description.
The performance of a contract must be in the mode the contract itself specifies. What did Brubaker agree to do? He agreed to furnish and deliver to Fogel & Co. one car load strictly No. 1 long-berry sound red wheat, on the track at Millway, as Fogel says; as he himself says, to furnish and deliver one car load No. 1 long-berry red wheat, long-berry red, sound wheat, No. 1 at $1.00 per bushel. Now having agreed to furnish this kind and description of wheat, he was bound to do so to enable him to demand and recover the price. The terms of the contract cast the burden of the selection of the wheat of the kind and character ordered on Mr. Brubaker. If he failed to select and deliver such wheat, Fogel was neither bound to accept nor pay for it, at any price; they could rescind the contract and refuse to receive it, and no recovery could be had against them. They refused to remit at $1.00.
They did rescind this first contract, and the rescission appears to have been accepted as final by Mr. Brubaker. Did they, after so doing, make any other contract with Mr. Brubaker, as he contends they did? You have heard the evidence, and will say whether or not they did, at 95 cents per bushel, after they had inspected it. If they did that, they would be liable and bound to pay that sum: if they refused to do so, and returned the wheat, they would be liable for the difference in price between that sum and the sum it was fairly sold for in market, at the time of the refusal. They deny that they bought it for 95 cents, and say they made no such contract with him. There seems to be no doubt that they directed Brubaker to draw on them at 95 cents, and that he did so; that they refused to pay that draft, and after this refusal he ordered them to send the wheat to Millway, which they did. It will be for you to say from all the evidence, whether or not they, after refusing at $1.00, bought it at 95 cents, and refused to pay for it. So much for the claim for difference in price. Unless you find they bought it, you cannot allow him for the difference in price, $41.91. Now as to freight.
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