Pittsburgh Provision & Packing Co. v. Cudahy Packing Co.

• Citation: 260 Pa. 135,103 A. 548
• Decision Date: 07 January 1918
• Docket Number: 59
• Parties: Pittsburgh Provision & Packing Company v. Cudahy Packing Company, Appellant
• Court: United States State Supreme Court of Pennsylvania

103 A. 548

260 Pa. 135

Pittsburgh Provision & Packing Company v. Cudahy Packing Company, Appellant

No. 59

Supreme Court of Pennsylvania

January 7, 1918

Argued October 9, 1917

Appeal, No. 59, Oct. T., 1917, by defendant, from judgment of C.P. Allegheny Co., April T., 1914, No. 381, on verdict for plaintiff in case of Pittsburgh Provision & Packing Company a corporation, v. The Cudahy Packing Company, a corporation. Affirmed.

Assumpsit to recover price paid for merchandise. Before DAVIS, J.

The opinion of the Supreme Court states the case.

Verdict for plaintiff for $4,036.70, and judgment thereon. Defendant appealed.

Errors assigned, among others, were the refusal of binding instructions for defendant and the refusal of defendant's motion for judgment n.o.v.

The judgment of the lower court is affirmed.

George O. Calder and R. B. Webster, for appellant.

Samuel McClay, with him Reed, Smith, Shaw & Beal, for appellee.

Before MESTREZAT, STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff and defendant are both engaged in the wholesale meat and provision business in the City of Pittsburgh and on June 21 1913, plaintiff sent to defendant's office in that city an order as follows: "Please ship the following articles and send invoice and shipping receipt or bill of lading to above address, stating how shipped, route, etc., and giving car numbers and initials: 16,000 pounds Fresh Boneless Beef Chucks, 12 1/2c c.a.f. Pittsburgh; 5,000 lbs. Fresh Beef Trimmings 12c c.a.f. Pittsburgh, packed in sugar barrels, lightly salted. Guaranteed Fresh . . . Ship to Pittsburgh Provision & Packing Co., Union Stock Yards, Pittsburgh, Pa." In compliance with this order defendant shipped the meat mentioned from its packing house in Kansas City, Kansas, in refrigerator cars by way of the Wabash railroad, under bill of lading consigned to its own order at Pittsburgh, with direction to notify plaintiff company at that city. The bill of lading with draft attached to invoice was forwarded to a Pittsburgh bank, and, upon presentation to plaintiff, the draft, calling for the cash price less freight charges, was paid by plaintiff without awaiting arrival of the meat. The car was delivered at defendant's siding at Pittsburgh on Saturday, June 28, 1913, and on the following Monday defendant gave the Wabash railroad directions to reconsign the car to plaintiff's siding at the Union Stock Yards. Upon reaching this latter point plaintiff's examination of the meat found it unfit for food and its representative at once notified defendant by telephone of the condition. The following day plaintiff advised defendant by letter that the meat was not as guaranteed and requested defendant to have the car removed promptly. Upon failure of the latter to do so the railroad company subsequently disposed of the contents. This action was then brought to recover the purchase-price together with an item of expense for re-icing the car at defendant's request. The trial resulted in a verdict for plaintiff for the full amount of its claim. Defendant appeals.

The single question submitted to the jury was whether the meat was in the condition required by the guarantee at the time of its delivery at its destination, where plaintiff had an opportunity to make inspection. That the meat was not in proper condition for use was practically conceded, the principal dispute being whether, under the terms of the order, the title of the goods passed upon delivery to the carrier at Kansas City, or whether the sale was not consummated until delivery on plaintiff's siding at Pittsburgh. In the former case proof of delivery to the carrier at Kansas City in good condition and properly packed would entitle defendant to the purchase-price and if the shipment was lost through delay or improper care in transit the loss would be a matter of adjustment between the purchaser and the carrier.

Evidence was offered to show the words "guaranteed fresh" meant that the meat should be...