15 Pa. 118 | Pa. | 1850
The opinion of the court was delivered by
The learned President of the Court of Common Pleas seems, on the trial, to have been led into the error of supposing, that the correct determination of this cause depends- on those principles which regulate the rights and remedies of contracting parties, where the question is of a partial or defective execution of a contract, involving the expenditure of labor, time, and skill in the service of another. Of this character are the cases of Ligget v. Smith, 3 Watts 331; Preston v. Finney, 2 W. & Ser. 53; and Chambers v. Jaynes, 4 Barr 39; which appear to have been in the mind of the judge when ruling the case, and were here pressed into the argument by counsel under the same erroneous impression. The present, however, is an agreement, presenting questions very
In October 1841, the defendant, acting through an agent, gave to the plaintiff an order for a certain quantity of lumber, of a particular quality and dimensions, to be delivered at the Nantieoke Dam, on or before the first of December then next, at a specified price.
The plaintiff undertook to deliver it accordingly,.and avers that he did so on the 29th of November, 1841. On that day, a quantity of lumber, answering generally to the quality and kind ordered, was brought to the dam by the plaintiff, and there received by the defendant’s son Joseph, who gave the plaintiff a receipt for it, designating it as “ a lot of timber supposed to be the fulfilment of a certain bill of timber, by S. W. Green to said James Dailey.” Evidence was gone into to show that, in this, Joseph Green did not act as the agent of his father; but whether he did or not is of little consequence, since it is in proof the father himself was, shortly afterward, upon the raft, for the purpose of measuring and otherwise ascertaining whether the sticks of which it was composed accorded with the kind of timber ordered. There can be, therefore, no question made of a sufficient delivery by the plaintiff under his contract. Indeed, bringing it to the place designated in the contract, and there securing it, would, under the circumstances that have place here, be a sufficient fulfilment of this part of the agreement, though no one had been there to receive it: Case v. Green, 5 Watts 262. The defendant seems to have been engaged, with others, in the examination of the lumber after this. It remained where it had been thus examined by the plaintiff, for more than a month, when it .was carried off by what is called an ice-freshet in the Susquehanna Eiver, some time in January 1842, and totally lost. Who is to bear this loss ?
In this action to recover the contract price, the defendant sets up as a complete defence, that the lumber did not tally in size and quality with that ordered by him. The plaintiff avers the contrary, which may be a proper subject of inquiry by a jury, under the prin- ' ciples I shall proceed to detail.
By his agreement to deliver in accordance with the order, the plaintiff, in effect, warranted the timber delivered should be accordant with that described in the order; for in a sale of goods by sample, or upon a written contract of articles of a particular description, which the purchaser had no opportunity of inspecting, the law implies a warranty that the articles shall answer the description in the written contract: Parkison v. Lee, 2 East 144; Parker v. Palmer, 4 B. & Ald. 387 ; Gardiner v. Gray, 4 Camp. 144; and Jennings v. Gratz, 3 R. 168. But there is this difference between such a warranty and an express warranty of a specific chattel in esse, which the buyer has had an opportunity to inspect before
In the instance before us, it seems to me, the buyer was guilty of gross laches. He professes to have discovered the insufficiency of the timber immediately after its delivery, and yet, without one word of caution to the seller, he abandoned the property to the chances of a rapid river, peculiarly liable to floods, and at a time when he must have- known it was exposed to the imminent danger of being swept away, as afterwards actually occurred. I can perceive no legal apology for negligence like this. It is plain he was aware of the plaintiff’s place of residence, for he had before communicated with him there, and, it is not to be doubted, he might easily have sent the requisite notice by post, or in- some other way. But were it otherwise, it was, at least, his duty to secure the raft from destruction, until means were found to inform the owner. He did none of these things, and his neglect clearly involves him in a liability to answer the plaintiff’s action.
What then is the limit of the right of recovery ? The contract
What has been said disposes of such of the errors assigned, as are worthy of any extended consideration. There is little or nothing in the bills of exception to evidence. Hervey’s deposition was rightly admitted, the exhibits referred to in it being sufficiently identified. They were attached to another deposition taken in the same cause, from which they could not with propriety be detached. The justice, before whom the deposition was taken, refers to and marks them as the papers referred to by the witness. In addition to which, we have the testimony of Green, who was present, that the papers thus referred to are those which were exhibited t'o the witness. I am at a loss to comprehend why, under the circumstances, parol evidence is not admissible to prove the fact. Regularly, the exhibits spoken of by a deponent should be referred to in the body of the deposition, and either annexed, to the deposition or so marked as to be identified. This appears to have been done here, but whether or not it was competent to show it, per testes, was the question. The exception taken does not come within the spirit of the decision in Petriken v. Collier: 7 W. Ser. 392, cited for the plaintiff in error.
Nor is the objection made against Jones’s deposition better founded. It is not such a record as gave rise to the decision on the point made in Devling v. Williamson, 9 Watts 311. Besides, it was not offered in evidence in a foreign tribunal, but at home. So
Judgment reversed, and a venire de novo awarded.