Houston v. Cook

• Decision Date: 03 January 1893
• Docket Number: 13,12
• Citation: 25 A. 622,153 Pa. 43
• Parties: Houston v. Cook, Appellant
• Court: Pennsylvania Supreme Court

25 A. 622

153 Pa. 43

Houston v. Cook, Appellant

Nos. 12, 13

Supreme Court of Pennsylvania

January 3, 1893

Argued October 26, 1892

Appeals, Nos. 12 and 13, Oct. T., 1892, by defendant, J. W Cook, from judgments of C.P. No. 1, Allegheny Co., June T. 1885, Nos. 148 and 353, on verdict for plaintiff, J. R. Houston.

Assumpsit on promissory notes.

The facts appear by the opinion of the Supreme Court.

The court below charged in part as follows, by COLLIER, J.:

["Now, gentlemen, you must not be under a misapprehension as to the law in that particular, and I will read the rule from a decision of our Supreme Court. It is this: 'A vendor of goods is not answerable for their quality unless he has expressly warranted them, or has been guilty of fraudulent representation or affirmation of a quality known to be false.' In other words, representations about the quality or the condition of goods, even though false, will not enable the person to take the goods, keep them, and not pay for them, or to set up a defence against paying for them.] . . . .

["Now, gentlemen, on the question of fraudulent misrepresentations: The representations must have been false and fraudulent, and if, as alleged by the learned counsel for the defendant, the plaintiff knew this timber was rotten, he was guilty of a fraudulent misrepresentation. But if the plaintiff in getting it out in the woods found it reasonably sound to appearances and did not know, had no means of knowing it was unsound, then his representation that it was sound would amount to nothing.] . . . .

["So, gentlemen, the plaintiff is entitled to your verdict for the amount of his claim, unless one of these defences is made out. Now, was this a mere representation of the goods? Did the plaintiff say, it is sound timber so far as I know? If he said that and did not know or had not cause to know that he was telling a falsehood, that would amount to nothing. But if this timber was in such a rotten condition that he must have known and did know it was unsound, then that was a fraudulent misrepresentation, and if the defendant notified him promptly after discovering it, he could not recover; and promptly means reasonably quickly under all the circumstances of the case."]

Plaintiff's points were as follows:

"1. The defendant cannot resist payment of the contract price of the timber, nor can he claim any reduction therefrom on account of the alleged unsoundness of the timber, without proof of a warranty or fraudulent representation as to its quality. A mistaken or false representation of its soundness is not sufficient of itself to amount to a defence." Affirmed. [1]

"2. A mere representation that the timber was sound did not constitute a warranty and is no defence to the payment of the whole of the purchase money, unless such representation was both fraudulent and false." Affirmed. [2]

"3. In the absence of a warranty, the representations of plaintiff, that the timber was sound, without fraud, is no defence whatever, and even if the jury should find that such representations were fraudulent, such unsoundness would, nevertheless, be no defence, if the defendant, after the discovery thereof, used and sold any portion of the timber; it was his duty, in that case, to notify the plaintiff promptly, that he declined to accept it, otherwise he is bound to pay for it." Affirmed. [3]

"4. If the defendant discovered the alleged unsoundness of the timber soon after its delivery in November, 1884, but did not notify the plaintiff of his objections to it till the 16th of the following February, (nearly three months afterwards,) and continued in the meantime to saw up and use portions of it, he is now estopped from claiming a rescission of the contract, or the right to return and throw the residue back on plaintiff's hands, and in the absence of a warranty is liable for the full contract price of the timber." Affirmed. [4]

Verdicts and judgments for plaintiff. Defendant appealed.

Errors assigned were (1-7) instructions, quoting them.

Judgment affirmed.

Levi Bird Duff, for appellant, cited, Story on Sales, § 374; McFarland v. Newman, 9 Watts, 55; Pennock v. Tilford, 17 Pa. 456; Fogel v. Brubaker, 122 Pa. 7; Weimer v. Clement, 37 Pa. 147; Selser v. Roberts & Co., 105 Pa. 242; Kellogg v. Bridge Co., 110 U.S. 116; Buffington v. Quantin, 17 Pa. 310.

Thos. C. Lazear, Chas. P. Orr with him, for appellee, cited Weimer v. Clement, 37 Pa. 147; Barnard v. Kellogg, 10 Wallace, 383; Benjamin on Sales, § 666; Warren v. Phila. Coal Co., 83 Pa. 437; McFarland v. Newman, 9 Watts, 55; Wetherell v. Nelson, 20 Pa. 448; Pennock v. Tilford, 17 Pa. 456; Bower v. Fenn, 90 Pa. 359; Hilliard on Sales, 476; Matteawan Co. v. Bently, 13 Barb. 64; Fry on Specific Performance, 409; Pearsoll v. Chapin, 44 Pa. 14.

Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS, McCOLLUM, MITCHELL and HEYDRICK, JJ.

OPINION

Mr. JUSTICE McCOLLUM:

In November, 1884, J. R. Houston, the appellee, sold and delivered to J. W. Cook, the appellant, at the mill of the latter in the city of Allegheny, a raft of oak timber for thirteen cents per cubic foot. The timber was examined and measured in the presence of the parties by W. S. Oakley, the city measurer, and it amounted at the price named to the sum of $622.18. The appellant paid, on the 15th of November 1884, one hundred and fifty dollars in cash, gave his duebill...