Hamilton v. Kirby
| Decision Date | 27 May 1901 |
| Docket Number | 41 |
| Citation | 49 A. 214,199 Pa. 466 |
| Parties | Hamilton, Appellant, v. Kirby |
| Court | Pennsylvania Supreme Court |
Argued March 28, 1901
Appeal, No. 41, Jan. T., 1901, by plaintiffs, from order of C.P. No. 1, Phila. Co., Dec. T., 1899, No. 1012, discharging rule for judgment for want of a sufficient affidavit of defense in case of Charles L. Hamilton, Wilbur F. Hamilton and Edwin E. Hamilton, trading as W. C. Hamilton & Sons, v William S.W. Kirby and Frank H. Hawkins, trading as Kirby & Hawkins. Affirmed.
Assumpsit for breach of contract.
From the record it appeared that plaintiff claimed to recover from defendant $4,511 for loss resulting from failure of defendants to deliver a quantity of poplar wood to plaintiffs under a contract of sale. The contract called for peeled poplar. The defendants filed an affidavit of defense which was in part as follows:
The defendants never agreed to furnish poplar wood with the "bark on" and never consented with the plaintiffs that they should go into the market and buy wood such as they had not agreed to furnish them, and the defendants never allowed the plaintiffs the privilege of going into the market and buying the poplar wood with the "bark on." The purchase of poplar wood with the "bark on" to take the place of and be substituted for the peeled poplar wood is absolutely new to the trade, not in accordance therewith, and entirely contrary thereto.
Deponent avers that $6.75 per cord for poplar wood with the "bark on" was an extraordinary price and far above the market price on December 30, 1899, the date of the alleged purchase.
The average price of cord wood, which is solid wood with the "bark on" and usually consists of chestnut, oak poplar, and other woods, is from $3.00 to $3.50 per cord, delivered on a corresponding freight rate to Philadelphia, Pa. Poplar wood is no more expensive than chestnut or oak wood. A charge of $2.00 per cord for peeling the said wood is an excessive price for the work, inasmuch as the entire cost of felling the timber, sawing into lengths, splitting the wood to proper size, and peeling the bark costs from seventy-five cents to one dollar per cord, and if the wood with the "bark on" had been bought by the plaintiffs at the market price, the plaintiffs would have obtained their wood at less than their contract price with the defendants, and consequently could not have any claim against the defendants under the said contract.
Deponent avers that the plaintiffs, in their statement of claim, acknowledge that there was no such wood in the market as "Virginia white poplar wood," as called for in the contract, and therefore it was a physical impossibility for defendants to purchase the same.
The defendants deny the right of the plaintiffs to go into the market and purchase wood not called for in the said contract between the plaintiffs and defendants.
The proper season for securing peeled poplar wood is in the spring season, and December 30, the date of the alleged purchase, is the season of the year when wood is highest in price and most difficult to obtain.
The court discharged a rule for judgment for want of a sufficient affidavit of defense.
Error assigned was the order of the court.
Judgment affirmed.
Jere J Crowley, with him Thomas W. Barlow, for appellants. -- The appellants, under the circumstances, had the right to purchase in the market poplar wood with the bark on as a substitute for poplar wood peeled, which the appellees contracted to deliver, and charge them with the difference between the market price and cost of peeling the wood with the bark on, and the...
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