Whatley v. Weston, Dodson & Co., Inc.

Decision Date14 March 1927
Docket Number64
Citation136 A. 849,289 Pa. 36
PartiesWhatley et al., Appellants, v. Weston, Dodson & Co., Inc
CourtPennsylvania Supreme Court

Argued February 1, 1927

Appeal, No. 64, Jan. T., 1927, by plaintiffs, from judgment of C.P. Northampton Co., Jan. T., 1923, No. 36, on verdict for defendant, in case of F.C. Whatley et al., trading as the Steel City Gas Coal Co. v. Weston, Dodson & Co., Inc. Reversed.

Assumpsit for coal sold and delivered. Before McKEEN, J.

Verdict and judgment for defendant. Plaintiffs appealed.

Error assigned was, inter alia, refusal of judgment for plaintiffs n.o.v., quoting record.

The judgment is reversed and the court below is directed to enter judgment for plaintiffs for the amount of their claim with interest.

W. H Kirkpatrick, of Kirkpatrick & Maxwell, for appellant. -- There being no disputed fact to submit to the jury, a directed verdict was necessary.

Every element of a sale, delivery, and acceptance was proved by undisputed testimony.

Defendant by its subsequent conduct, with full knowledge of the facts waived any default on the part of plaintiff, even if the breach were material: Wilbur v. Lamborn, 276 Pa. 479; Wright v. Carbonic Co., 271 Pa. 332; Bascom v. Stove Co., 271 Pa. 332; Sternbergh v. Iron Co., 156 Pa. 34; Tete Bros. v. Eshler, 11 Pa.Super. 224.

Asher Seip, with him Adams Dodson, for appellee. -- If plaintiffs seek to escape the performance of the terms of the order to report the car numbers and weights to defendant within the time specified, and at the same time accept Tidewater as the agent of defendant to whom to ship the coal for acceptance on behalf of defendant, and thereby charge the principal with the acts of the agent, the burden is on plaintiffs to prove that the agency and its extent and scope embraced the right to waive the terms of the order, unperformed by plaintiffs; and if unperformed by plaintiffs, that the scope of the agency extended to the return or offer to return to plaintiffs the coal in question: Humbert v. Meyers, 279 Pa. 171, 176.

When a third person knowingly deals with an agent in excess of the agent's authority, the principal must have full knowledge, actual or constructive, in order to ratify the unauthorized act of the agent: Republic Bank Note Co. v. R.R., 65 Pa.Super. 72.

A punctual compliance with the express terms of the written contract or order was necessary for the following reasons; first, the great fluctuation of the price of coal at this time; second, the unauthorized shipments to Tidewater for the accounts of its members; third, the fact of shipment, if made, was peculiarly within the knowledge of plaintiffs; fourth, notice was expressly provided for in the contract.

Title to the eighteen cars of coal passed to Frame, Friend & Stineman, Inc., upon shipment from the mines: P. & R.R.R. v. Weirman, 88 Pa. 264; Schumacher v. Eby, 24 Pa. 521; Bacharach v. Freight Line, 133 Pa. 414; Dannemiller v. Kirkpatrick, 201 Pa. 218.

Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

This action was brought to recover the purchase price of eighteen cars of coal. The trial resulted in a verdict and judgment for defendant, from which plaintiffs appeal, contending that under the evidence judgment should have been entered in their favor for the full amount of their claim.

Defendant gave a written order to plaintiffs on October 12, 1920, for sixty cars of coal. The order stipulated that it was to be shipped to Tidewater Coal Exchange, Incorporated, "Pool 34," at the Curtis Bay Coal Piers, Baltimore, for the account of defendant under a permit held by it. The price named was $10.75 per ton. The order provided that plaintiffs should "Report all car numbers to us [defendant] at Bethlehem the day cars are shipped. Follow with weights immediately after coal passes scales."

The Tidewater Coal Exchange was a corporation composed of certain dealers in coal, defendant being one of them, whose purpose was to aid and facilitate the handling and shipment of coal at tidewater. Its physical entity consisted of a large number of railroad tracks on which the cars were run and where they remained until the coal was loaded into vessels. When the coal reached the Exchange it was inspected and if it passed inspection was loaded directly into boats from the cars or was placed on the tracks devoted to coal of similar grade. When coal was accepted by the Exchange its identity was lost in the mass of other coal of like kind. The coal in question, owing to its grade, was to go into pool 34, to which defendant's written order directed shipment. There is no denial that the coal was shipped to and accepted by the Tidewater Exchange. Six cars thereof were shown to have been loaded directly into a named boat in which defendant was shipping coal, and the rest was mingled with the other coal of similar kind in the Exchange for defendant's account. The Exchange did not handle or receive any money for the coal which passed through it. It credited to each consignee the coal received consigned to him and charged him with the coal which went out of its hands to fill his commitments. Under certain conditions members of the Exchange were permitted to take more coal out of the mass in the Exchange than was to their credit, being charged with the overdraft which they made up by subsequent shipments into the Exchange. Shortly after the receipt of the eighteen cars of coal in question defendant overdrew its credit in the Exchange several thousand tons. This establishes the fact, an important one in the case, that all the coal in question was sold by defendant and shipped to its customers.

With this general view of the situation outlined, we will now take up in detail the circumstances disclosed by the testimony which to our minds convincingly show that defendant should pay for the coal, that its defenses against payment are justly unavailing and that the trial judge was in error in not directing a verdict in plaintiffs' favor.

First there is the circumstance that defendant's written order directed plaintiffs to ship the coal to the Tidewater Exchange for its account. This constituted the Exchange defendant's agent to receive it. The coal arrived at the Exchange on October 17th and 18th and the Exchange notified defendant of arrival and that the cars had been "dumped" for its account. Defendant was also informed that it had been credited on the books of the Exchange with the tonnage contained in the eighteen cars. The Exchange reported the car numbers but not the name of the consignor as it did not know who was the consignor. These notices from the Exchange were received by defendant on October 25th, 26th and 27th.

Plaintiffs did not comply with the requirements of defendant's order to "Report all car numbers to us at Bethlehem the day cars are shipped." This report was not made until November 18th. In connection with it plaintiffs stated that according to their records the eighteen cars had gone forward to Frame, Friend & Stineman, but the latter had advised them that the Tidewater Exchange showed that the cars had arrived there for defendant's account. Upon receipt of plaintiffs' communication of November 18th giving the car numbers, defendant wired plaintiffs acknowledge that the...

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