Wolff Dryer Co. v. Bigler

• Decision Date: 19 July 1899
• Docket Number: 4
• Citation: 43 A. 1092,192 Pa. 466
• Parties: Wolff Dryer Company v. Casper S. Bigler, Trustees of the Estate of Sarah L. Bigler, deceased, Casper S. Bigler and James M. Rhoads, doing business as Samuel L. Bigler & Company, Appellants
• Court: Pennsylvania Supreme Court

43 A. 1092

Wolff Dryer Company v. Casper S. Bigler, Trustees of the Estate of Sarah L. Bigler, deceased, Casper S. Bigler and James M. Rhoads, doing business as Samuel L. Bigler & Company, Appellants

192 Pa. 466

No. 4

Supreme Court of Pennsylvania

July 19, 1899

Argued May 29, 1899

Appeal, No. 4, May T., 1899, by defendants, from judgment of C.P. Dauphin Co., Sept. T., 1896, No. 292, on verdict for plaintiff. Affirmed.

Replevin to determine the ownership of certain brick drying machines. Before SIMONTON, P.J.

At the trial it appeared that plaintiff was a corporation of the state of Illinois. On January 31, 1895, A. F. Barron, agent of the plaintiff, made a contract with the defendants, by which the plaintiff granted to defendants the right to erect an "Iron Clad Brick Dryer," the buildings for which were to be built by defendants, according to plans and specifications of the plaintiff, and under the superintendence of a man furnished by it. Plaintiff was to furnish the equipment for the dry house, which it agreed to deliver f.o.b. Harrisburg, for $3,950, for which payment was to be made in either negotiable notes bearing interest, or cash, at the option of defendants. The contract provided that the dryer thus erected should have a drying capacity of 40,000 standard size soft mud bricks per twenty-four hours that a test of the same should be made upon the completion of the dry house, or within thirty days after the arrival of the cars and rails; and that, before the superintendent of the plaintiff should leave, he should be given a letter of acceptance, or, in the event that the test was unsatisfactory, a written statement to that effect, and that a failure to comply with such provision should be construed as an acceptance of the dryer. In the event that the dryer failed to dry the quantity of bricks stated, plaintiff was to remove the materials at its own expense, and refund all moneys paid and return all notes given it, and the contract was to be considered as canceled, with neither party having any claim upon the other. It also provided that the title to the possession of the dryer should remain in plaintiff until all notes and claims should be paid, and that it should have the right, upon failure to make any payment provided for, to remove the dryer, and retain all payments theretofore made.

The contract contained no warranty that the dryer would dry the bricks without cracking.

On March 2, 1895, plaintiff addressed the defendants the following letter:

"Your favor of the 1st inst., received and contents noted. You mention that should you conclude to put in an auger machine if we will guarantee to dry brick made on this machine without cracking -- our answer to this question is, yes.

"We note your remark that you expect to start building the dryer on Monday, if this is the case, you no doubt want us to get out the material and ship it, so it will be there in time to put it in place when you are ready for it. Please give us shipping directions as early as possible, and oblige."

The letter of March 1 was not produced in evidence. The dryer was put up and apparently used by the defendants for several months without any notice to the plaintiff that it was unsatisfactory. Defendants alleged that the plaintiff by the letter of March 2 became a warrantor that the machine would dry bricks without cracking them. They charged a breach of warranty, and refused either to return the machine or to pay for it.

Defendants' point and the answer thereto among others were as follows:

2. The letter of the Wolff Dryer Company, dated March 2, 1895 having been accepted and acted upon by the defendants, is a contract of warranty which is inconsistent with, and, being later in date, annulled or at least modified the clause in the original agreement providing that the plaintiff might take out its property and retain all the consideration received for it; and if the jury find that the warranty to dry, without cracking, bricks made on an auger machine was not fulfilled, the plaintiff, not having tendered back the cash and notes received by it, cannot recover in this action; and the verdict must be for the defendants. Answer: This is refused. We think the effect of this letter was to substitute stiff mud for soft mud where the latter occurs in the original contract. [1]

The court gave binding instructions for plaintiff, reserving the question whether the omission of the plaintiff to file a statement under the act of April 22, 1874, defeated its right to maintain the action. [9]

Verdict for plaintiff for six cents damages and costs, upon which judgment was subsequently entered by the court.

Errors assigned were (1, 9) above instructions, quoting them; (10) in entering judgment for plaintiff on the reserved question.

The judgment is affirmed.

Lyman D. Gilbert, with him M. W. Jacobs and Frederick M. Ott, for appellant. -- The letter of March 2 contained a warranty: Warren v. Philadelphia Coal Co., 83 Pa. 437; Brown v. Piper, 91 U.S. 37; Douglass Axe Co. v. Gardner, 10 Cush. 88.

Plaintiff violated the act of April 22, 1874: Cooper Mfg. Co. v. Ferguson, 113 U.S. 727; Lasher v. Stimson, 145 Pa. 30; Farrior v. New England Mortgage Security Co., 88 Ala. 275; Mearshon & Co. v. Lumber Co., 187 Pa. 12; Ry. Co. v. Solan, 169 U.S. 133; Hennington v. Georgia, 163 U.S. 299; Smith v. Alabama, 124 U.S. 465.

The effect of the act of 1874 to render the contract unenforceable is clearly shown in Lasher v. Stimson, 145 Pa. 30, Johnson v. Hulings, 103 Pa. 498, Citizens' Trust & Surety Co. v. McCanna & Fraser Co., 6 Dist. Rep. 25, and Cooper Mfg. Co. v. Ferguson, 113 U.S. 727.

C. L. Bailey, of Wolfe & Bailey, for appellee. -- The contract between the parties in this case, whereby the plaintiff was to retain title to the materials sold to the defendants to equip the dry house in the yards of the latter until they had been fully paid for, was the usual one of conditional sale, and valid as between the parties; Haak v. Linderman, 64 Pa. 501; Krause v. Com., 93 Pa. 421; Brunswick & Balke Co. v. Hoover, 95 Pa. 508.

In the absence of any exceptional circumstances the plaintiff had a right to retake its goods by replevin, upon nonpayment of the notes given it: Hineman v. Matthews, 138 Pa. 204; Collins v. Houston, 138 Pa. 481; Ferguson v. Rafferty, 128 Pa. 337; Cobbey on Replevin, sec. 246.

In thus bringing its action the plaintiff was not seeking at the same time to retake its property and to confiscate the entire price therefor, in the notes given and the money paid by the defendants. On the contrary, with the exception of $125, the entire price of the materials furnished by the plaintiff to the defendants was represented by the defendants' own note, not negotiated, and which were produced at the trial of the case and placed unreservedly under the control of the court where they now are. This was all that was necessary: Bush v. Bender, 113 Pa. 94; Thurston v. Blanchard, 22 Pick. 18; Poor v. Woodburn, 25 Vermont, 234; Durr v. Replogle, 167 Pa. 347; Tufts v. D'Arcambal, 12 L.R.A. (Mich.) 446.

Plaintiff had a right to maintain the action without having filed a statement under the act of April 22, 1874: McCall v California, 136 U.S. 104; Mobile County v. Kimball, 102 U.S. 691; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196; Blakeslee Mfg. Co. v. Hilton, 5 Pa. Superior Ct. 184; Mearshon & Co. v. Lumber Co., 187 Pa. 12; Commonwealth v. Simons, 3 Dist. Rep. 792; Commonwealth v. Mooney, 12 Lancaster Law Rev. 209; Commonwealth v. Walker, 12 Lancaster Law Rev. 210; Brennan v. Titusville, 153 U.S. 289; Standard Oil Co. v. Commonwealth, 101 Pa. 119; Wile & Breckner Co. v. Onsel, 10 Pa. C.C.R. 659; Cooper Mfg. Co. v. Ferguson, 113 U.S. 727; Commonwealth v. Bell Telephone Co., 129 Pa. 217; Kilgore v. Smith, 122 Pa. 48; Caesar v. Capell, 83 F. 403; Southern...