214 Pa. 98 | Pa. | 1906
Opinion by
The plaintiff, desiring to purchase some second hand steel
“ Subject. With reference to sale of. 1250 tons of second hand fit rail, with splice material .... Confirming my verbal conversation with your Mr. I. S. Williams, and my telephone message of this afternoon, we can let you have 1250 tons of second hand fit steel rail originally 70 lbs. per yard, delivered f. o. b. cars Harrisburg, Pa., at $19.75 per gross ton for the rails and SO cfcs. per pair for the splices, exclusive of bolts, delivered at the same place, both conditioned upon the rails being first inspected by you on the ground and accepted as fit for your work, otherwise the sale not to stand, as we cannot furnish the rails from any other points than the Northern'Central Ry. lines, and P. & E. Ry. lines, from which these rails are reported as being on hand. . . . This sale is made conditioned on payment therefor being made cash upon presentation of shipping invoices to you and before cars are released by us to you. Please advise whether this is in accordance with your understanding and acceptable to you.” In several subsequent letters during the same month, Mr. Richards wrote the plaintiff indicating the places on the two divisions of the defendant’s road where the rails could be found by the plaintiff for inspection. Under date of June 28, 1899, the plaintiff addressed a letter to Mr. Richards at the defendant’s general office in Philadelphia as follows: “ I agree to take twelve hundred and fifty (1250) tons of seventy (70 lbs.) relaying rails at Nineteen and 75/100 ($19.75) Dollars per gross ton f. o. b. cars Harrisburg, Pa., and splices for same at thirty (80c) cents per pair, subject to inspection. My inspector has looked over the rails at Parkton and lias selected about three hundred (300) tons that he can use. . . . My inspector has gone to Renovo to inspect the other rails on the P. & E. division and have wired him that your supervisor will nreet him at Renovo.” " In a subsequent letter to the plaintiff, dated July 25, 1899, Mr. Richards states that his company had for sale 2,240 tons of rails of the character described in his letter of June 21. Of
In the statement, the plaintiff avers substantially'that a contract was entered into by the parties by means of the communications referred to for the sale and purchase of 1,250 tons of second hand, originally seventy' pounds per yard, steel rails fit for relaying, at $19.75 per gross ton; that lie had complied with his part of the contract 'by giving shipping instructions and by sending inspectors to make the inspection of the rails to the places designated by the defendant; that at no time were the inspectors shown the number of rails of the quality and character called for by the contract and which the defendant agreed to show; that the defendant company shipped to the plaintiff 27 620/2240 tons but refused to ship any more rails or ' allow him to inspect or select any other rails. The defense, at' the trial, was that the plaintiff had not made the inspection in accordance with the agreement; that the inspectors who made it were not the plaintiff’s agents; that there had been no acceptance upon the ground of the rails offered by the defendant “and, consequently, that no sale stood or was effected.” The learned trial judge submitted the ease to the jury which returned'a verdict for the plaintiff. From the judgment entered on the verdict this appeal was taken by the defendant.
. Many, if not the greater number of the assignments of error are clearly in violation of the rules of court and will not be considered. Under the sixteenth and seventeenth assignments, howevei’, the xxxaterial questions ixx the case xnay be raised and disposed of. '
' There were two questions ’for consideration before the court below: one of law, for the court; and the other of fact,-for the jury. The first question, which was for the court, was whether the letters which passed between the parties constituted an executory contract of sale of the rails described in the defendant’s letter of June 21, 1899. This letter was explicit as to the quantity and quality of rails offered for sale and also as to the terms of the sale.. The company proposed to sell “twelve hundred and fifty (1260) toxis of second hand fit steel rails originally seventy-(70 lbs.) per yard; delivered f. o. b. cars
An executed contract for the sale of a chattel vests the title at once, but an executory contract always leaves something to be done before the title to the property will vest in the purchaser. When, however, the act is performed, the sale is complete and the title to the property passes. And in cases like the present, where personal property of a certain description is purchased but not identified or selected from a mass of like property of the Vendor, the contract is executory and incomplete and the title to it remains in the vendor. As soon, however, as the purchaser makes a selection of a particular part of the property in pursuance of his contract and his act is approved
When the condition stated in the contract before us which required an inspection and selection was performed, the agreement became executed and the sale was complete. It was the duty of the purchaser to make an inspection of the rails and select such as, in quality and size, conform to the rails called for in the contract. Having made the selection with the approval of the vendor, the sale was complete and the title passed to the purchaser. The duty of the defendant company under the contract required it to afford the plaintiff an opportunity to inspect and select from the second hand rails on its Northern Central and Philadelphia & Erie divisions 1,250 tons of the quality and size provided in the agreement. The quantity as well as the quality was fixed by the agreement and the failure to give the plaintiff an opportunity to select either the quantity or the kind of rails specified in the agreement would be a breach of the contract, for which the defendant would be liable. The refusal to furnish rails for an inspection, or to permit an inspection to be made, is equivalent to refusing to deliver rails which had been inspected and selected by the plaintiff.
The court having interpreted the letters as constituting a
These .questions of fact were necessarily for the jury, and their solution would determine the plaiutiff’s right to recover. The court told the jury if they found that the defendant company had submitted for plaintiff’s inspection on its two divisions 2,240 tons of the kind of rails mentioned in the contract,
We think the learned judge correctly interpreted the contract and properly submitted the questions of fact for the determination of the juiy, and, therefore, the judgment is affirmed.