152 A. 557 | Pa. | 1930
Defendant, a dealer in hides, offered, on July 30, 1927, by telegram, to sell to C. D. Brown Company, the plaintiff, three carloads of "first salted" selected skins at twenty-two cents a pound. The words used, under the custom of the trade, meant hides properly salted to prevent decay, and not those unprotected by the process mentioned, or those resalted, in either of which event "salt rust" would appear when tanned, destroying the grain of the leather manufactured. A telephone conversation followed between the parties, in which the proposed sale was discussed and a lesser price was determined *547 on. On August 2d, the defendant, in writing, tendered the number desired at twenty and one-half cents, in accordance with the conversation to which it referred, and, on the 3d, the plaintiff tanner, but not in answer to the letter sent, expressed its willingness to buy, agreeing to pay the sum fixed by telephone. A letter of credit was forwarded on the 4th, and drafts, sent subsequently with the bills of lading, were duly honored.
On the same day, an employee of Brown Company was sent to the warehouse of the seller to inspect the goods offered, as permitted in the telegram referred to, for they were to be "selected." His investigation raised suspicion as to the hides being "first salted." He thereupon refused to accept them and so reported to his employer, advising him of the discovery made. The latter immediately called the chief executive of the defendant company on the telephone, but, in his absence, a nephew, in charge of the business at the time, answered. The latter, representing the Hide Company, then agreed that if any of the skins forwarded were found not to be as warranted, a reduction in price would be made, asserting however that practically all were of proper quality. As a result, the entire 15,000 were shipped to the plaintiff and paid for, the invoice therefor being received on the 11th. They were immediately started to be put through the tanning process, which required ten days for completion. When the first batch was removed, the presence of salt rust was discovered, making useless the finished product for the purpose intended, as the grain in the leather was thereby destroyed, a condition which the testimony showed would not have resulted if the hides had been as represented.
Notice by telephone was promptly given of this fact by the buyer on August 26th, almost immediately after the defect was disclosed, and, within a few days, the manager of the Standard Hide Company called to make an inspection. He failed to report prior to September 12th, whereupon a letter was written asking that the *548 result of his investigation be supplied shortly. This was answered by defendant the following day, in which liability for the defects was denied, though the manager, who personally made the examination, had previously directed plaintiff to continue the tanning of all the hides forwarded, promising at the time to make an adjustment if any faults appeared. This action to recover for the loss sustained followed, and judgment was entered on a verdict for the plaintiff.
It is first urged that there was no warranty of quality. The telegram and telephone conversation called for "first-salted" skins, which arrangement was referred to in the following letters, and became necessarily incorporated therein. This was a description of a trade article, and an expert testified that, if in this condition, and not resalted, rust or further decay in the skins, which actually occurred, rendering them useless for the manufacture of grain leather, would not appear. The Sales Act of May 19, 1915 (P. L. 543, section 12), declares that "any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon." A mere statement of value or exaggeration of worth is excepted from this rule (Michelin Tire Co. v. Schulz,
This warranty was repeated by the manager of the defendant after the sale was made, in order to secure consent to the shipment by the inspector. Appellant contends this promise cannot be considered because at the time the transaction was complete, but the evidence shows it was a mere repetition of the one forming the foundation of the contract itself, and was made to prevent a rejection of the purchase. Ordinarily, a subsequent promise requires proof of a new consideration to be enforceable, as stated in Troop v. Franklin Savings Trust Co.,
Referring to this subsequent warranty, which is a mere repetition of the one preceding the agreement to buy, it is contended that there was no sufficient proof of the authority of the manager, who was conducting the business in the absence of his uncle, the president, to bind the Hide Company. He was at the time acting within the general scope of the work entrusted to him, and, if so, as the jury found on proper instructions, could bind the principal. This rule of implied authority has been frequently recognized in our cases. So, the manager of an office (Empire Imp. Mfg. Co. v. Hench,
The question of subsequent warranty, and the consideration therefor, is immaterial, if the original promise to the same effect is enforceable. Appellant insists it was not, and that parol evidence to prove such understanding was inadmissible, since these prior negotiations were merged in the written contract, as evidenced by the two letters of August 2d and 3d, written by the respective parties, and heretofore referred to. It will be remembered that these communications were not an offer by one and acceptance by another, but separate notes written each without reference to the other, after the telegram containing the warranty was forwarded, and the telephone conversation, altering the price, had taken place. Neither was complete in itself, but referred to the prior offer and resulting telephone discussion, and the rule that the writing embodies the terms of all negotiations (Gianni v. Russell,
A written instrument, referring to agreements or understandings not set forth therein, may be explained by parol (Garrison v. Salkind,
Finally, it is insisted no recovery can be had in this case, though the breach of warranty has been found by the jury, since the hides were accepted by the plaintiff. They were taken to Rochester by the inspector with the understanding that the bulk thereof were "first salted," and suitable for the making of grain leather, as represented, and that a reduction would be made if found not to be of the quality required for the manufacture of the product intended. They were received on the 11th of August, and the tanning of the first batch was not completed until ten days later, during which time the balance had been started in the course of conversion into finished leather. The representative of the defendant was promptly notified on the 26th, when the uselessness of the skins for the purpose purchased had been determined, and its inspector was sent, the first week of September, to investigate. He requested that the tanning of all the hides be completed, promising that an adjustment would be made for any loss caused by the defects, but, later, on September 13th, repudiated this promise. The measure of damages as explained to the jury, if plaintiff was entitled to recover, is not disputed in the assignments of error, but complaint is made that they should have been told the hides were accepted when delivered in Rochester, and that prompt notice, designating the lack of quality and the reason therefor, was not *552 given. A reading of the testimony does not justify the assertion made, and the question was properly submitted to the jury for its determination.
It is undoubtedly true that where the claim is made of breach of warranty, the purchaser is bound to give prompt notice to the seller (Wright v. General Carbonic Co.,
The rule applicable in such cases was laid down in Wolstenholme, Inc., v. Randall, Inc.,
The case was carefully tried and presented, and no legal reason has been advanced which would justify a reversal.
The judgment is affirmed.