25 Pa. Super. 22 | Pa. Super. Ct. | 1904
Opinion by
This is an appeal by the defendants from the judgment of the court below in a suit upon an oral contract for the sale of eight cases of tobacco by sample. The contract was made in New York, in March, 1900, between the plaintiffs and John J. Becker, one of the defendants, acting for his firm. The tobacco sold and purchased was in Wisconsin, and the defendants did not see it until it came to their place of business in Scranton, Pa. Each case contained substantially the same quantity of tobacco, but the defendants allege that the quality was not the same. At or about the time of the sale and purchase the plaintiffs delivered to the defendants a sample of each case of tobacco and these samples were retained by the defendants. The Act of April 13, 1887, P. L. 21, requires us to read into such a contract: “ An implied warranty on the part of the seller that the goods, chattels and property sold and to be delivered are the same in quality as the sample shown.” The price agreed upon for the tobacco was twenty cents per pound f. o. b. cars in Wisconsin. The eight cases were shipped direct from Wisconsin to the defendants in Scranton, and as alleged by them, each case examined and compared with the sample, which was claimed to have been taken from each particular case. The defendants allege that four cases, viz: Nos. 395, 491, 447 and 567 were substantially as represented by the plaintiffs and substantially like the respective sample upon which they were sold, excepting some minor deficiencies, and these cases were retained by the defendants ; but the four cases
The assignments of error are as follows: 1. “ The court erred in that part of their charge to the jury wherein they say: Looking upon the case in that way I feel constrained by my sense of duty in the matter to give you, what the law calls, binding instructions, and to direct you to render a verdict in favor of the plaintiffs for the amount of their claim, with interest.” 2. “ The learned court erred in directing the jury to find in favor of the plaintiffs for the full amount of their claim and interest.”
The plaintiffs were suing upon an oral contract and attempting to establish their right to recover the full purchase price of the eight cases of tobacco largely by oral testimony. And of course the burden rested on them of making out their case by preponderance of credible testimony. The pleadings are not printed for the reason alleged that they were lost, but we understand it to be conceded that the action was for the purchase price of the eight cases of tobacco, upon the theory that they were sold and' delivered to the defendants as an entire contract.
In addition to this it is contended that the second assignment of error raises the question as to whether the contract for the eight cases of tobacco was entire or severable. The theory of the plaintiffs is that the sale of the tobacco constituted an entire contract. On the other hand the defendant’s theory is that each case was sold upon its particular sample, and that they were at liberty to retain such case or cases of tobacco as
In Shinn et al. v. Bodine et al., 60 Pa. 182, Mr. Justice Agnew said (p. 185) : “ The entirety of a contract depends upon the intention of the parties and not on the divisibility of the subject. The severable nature of the latter may often assist in determining the intention, but will not overcome the intent to make an entire contract, when that is shown. Nor will the mode of measuring the price, as by the bushel, ton or pound, change the effect of the agreement when it is entire.” This case is cited with approval in Easton v. Jones, 198 Pa. 147. See also Snyder v. Loy Bros., 4 Pa. Superior Ct. 201.
The testimony of the plaintiffs and the defendants in the case under consideration -was in conflict. In our opinion it was not so clear that the court was warranted in determining, as a matter of law, that the contract was entire for the eight, cases of tobacco. We think this question was for the jury, .under appropriate instructions from the court, to determine what the understanding of the parties was at the time of the sale and purchase of the tobacco. It is true the price agreed upon was twenty cents per pound for the whole lot, yet each case was sold by sample, said to have been taken from it, and we are not able to see how the court could say, as a legal proposition, that the intention of the parties was to make an entire contract. In our opinion the jury might have found under the evidence, and the law applicable thereto, that the contract was severable. The true criterion is, what was the understanding of the parties when they made this oral contract?
But in addition to this there is much force in the position of the defendants that for nearly a month after the four cases were shipped to the plaintiffs in New York there was no contention that the contract was entire. The tobacco was received in Scranton on April 13th and was shipped to New York on April 18th. There was considerable correspondence between the parties immediately after the plaintiffs received notice of the shipment of the four cases of tobacco to them. In this correspondence the plaintiffs insisted upon the defendants receiving and paying for all of the tobacco for the reason that it was in accordance with the samples. The plaintiffs maintained this contention for nearly a month before setting up the
There is another reason urged why the learned judge erred in directing judgment for the full purchase price of all the tobacco. The plaintiffs’ action was for the recovery of the full contract price of the eight cases of tobacco on the theory of a sale and delivery. The evidence is clear that the defendants did not receive and retain four of these cases. Upon examination they rejected four cases and shipped the same to the plaintiffs and notified them of that fact. Upon this state of facts it was manifest error to direct the jury to find a verdict in favor of the plaintiffs for the full contract price of the eight cases, with interest. As the evidence stood the plaintiffs were only entitled, under any view, to the purchase price of the four cases retained, with interest, and to damages for the breach of the contract as to the four cases returned: Jones et al. v. Jennings Bros. & Co., 168 Pa. 493.
Judgment reversed with a v. f. d. n.