201 Pa. 218 | Pa. | 1902
Opinion by
Dannemiller & Company, the plaintiffs, are importers and roasters of coffee, having their place of business at Canton, in the state of Ohio. Allen Kirkpatrick & Company, the defendants, are wholesale grocers and carry on their business in the city of Pittsburg, in the state of Pennsylvania. By an agreement dated January 17,1896, the defendants were given the exclusive right to sell in certain parts of western Pennsylvania a brand of coffee prepared by the plaintiffs and known as “ Cordova ” coffee. The agreement was to continue in force for one year and as much longer thereafter as was satisfactory to both parties. The plaintiffs, with certain exceptions, were to sell no coffee within the designated territory. In consideration of having the exclusive right to sell the “ Cordova ” coffee in the territory named in the agreement, the defendants agreed to give this brand of coffee preference in sales made by them to all other coffees. The fifth paragraph of said agreement is as follows: “ The said Dannemiller & Company do hereby agree to bill ‘ Cordova ’ coffee at the same price f. o. b. Pittsburg as Arbuckles & Company or Woolson Spice Company with same terms of rebate and cash discount. In the event of advance or decline in price of same, it is agreed that upon all stock unsold in possession of said Allen Kirkpatrick & Company that they credit or charge the same to the account of said Dannemiller & Company; in short, the said Dannemiller & Company guarantee the price on all unsold coffee by having
During the years 1896,1897 and 1898 the plaintiffs shipped to the defendants numerous carloads of “ Cordova ” coffee. On March 18,1898, the defendants ordered a carload of coffee from the plaintiffs, and it was shipped on March 21,1898, from Canton via the Cleveland, Canton & Southern Railroad and the Baltimore & Ohio Railroad. It was consigned to the defendants at Pittsburg. On the day of the shipment the plaintiffs sent to the defendants an invoice of the coffee, accompanied by a bill of lading for the same in which the defendants were named as consignee. The invoice and bill of lading were shortly thereafter received by the defendants, who retained the bill of lading until April 25, 1898, when they returned it to the plaintiffs. All the invoices of coffee shipped by the plaintiffs to the defendants under the agreement between the parties, contained the following: “ All goods delivered to' the carriers in good order. Claims for damage thereafter, or breakage, must be made against the transportation company delivering the goods.”
The carload of coffee shipped by the plaintiffs on March 21, 1898, was lost in transit and never reached its destination. The defendants having declined to pay for it this action was instituted to recover its value. On the trial of the cause the defendants set up three grounds of defense: (1) That there was no delivery in Pittsburg, as required by the agreement; (2) that the agreement was one of agency, and there could be no recovery without showing the receipt of the coffee by the defendants; and (8) “ because a sale at Canton by plaintiffs to defendants at Pittsburg, evidenced by the bill of lading alone, the plaintiffs cannot recover.” The learned trial judge directed a verdict for the plaintiffs, but reserved the question whether there was any evidence which entitled the plaintiffs to recover. Subsequently a judgment non obstante veredicto was directed to be entered for the defendants. The court in the opinion filed, entering this judgment, held that the only question in the case was whether there was a delivery of the coffee to defendants; that this question must be determined by the terms of the contract which, it was claimed, were not in dispute, and that the plaintiffs’ right to recover depends upon
It will be conceded that if there was no delivery of the coffee to the defendants the loss of the goods must fall upon the plaintiffs, who still retained the title. If a vendor agrees to deliver at a certain place, the property is at his risk until it is so delivered: Sneathen v. Grubbs, 88 Pa. 147; McNeal v. Braun, 53 N. J. L. 617; Taylor v. Cole, 111 Mass. 363. But we cannot agree with the learned trial judge that the terms of the written agreement in this case determined conclusively the place of delivery, and that it was the duty of the court to withdraw the question from the jury. The language of the contract relied upon for such an interpretation is the following, part of which is quoted in the opinion of the court just cited: “ The said Dannemiller & Company do hereby agree to bill ‘ Cordova ’ coffee at the same price f. o. b. Pittsburg as Arbuckles & Compaby Or Woolson Spice Company, with the same terms of rebate and cash discount.” It was upon the construction of this clause that the learned judge decided that the contract required the plaintiffs to deliver the coffee to the defendants at Pittsburg. It is apparent, however, that this language of itself does not sustain the interpretation given it. It requires the plaintiffs to “bill” the coffee at the same price and on the same terms as competing firms in the city of Pittsburg. To “ bill ” coffee f. o. b. Pittsburg is not synonymous with the expression to “ deliver ” coffee f. o. b. Pittsburg. The language used in the agreement implied that the cost of the coffee at Pittsburg, including the expense of placing it there, should not exceed the price of coffee sold by firms competing with the plaintiffs at Pittsburg. It was also some evidence, though not conclusive that the coffee was to be delivered to the purchasers at Pittsburg : Neimeyer Lumber Co. v. Burlington & M. R. R. Co., 54 Neb. 321, and cases there cited.
The question of delivery of the coffee was under the facts disclosed on the trial, one of fact for the jury. It is well set-
In the light of these principles let us examine the case in hand. The appellees maintain and the court so held that the terms of the contract were not in dispute, and that the proper construction of it required the plaintiffs to deliver the coffee at Pittsburg. As suggested above, to sustain this construction the court must read the clause referred to as !! deliver” instead of “ bill ” the coffee f. o. b. Pittsburg. But the court cannot do tbis under the facts of the case. In the absence of this contract the delivery to the carrier was a delivery to the defendants at Canton, Ohio. It, therefore, required clear and explicit language in the contract to warrant the court in holding that such was not the intention of the parties. While, as we have
It is apparent from the contention of the parties and from the testimony in the case that the question of the place of delivery of the coffee is one of fact to be determined by a jury. The 'written contract is not the only evidence on this point. If it were, and its terms were explicit, the court could determine the question without the aid of a jury.
The learned judge seems to think that the case at bar is identical with Miller v. Seaman, 176 Pa. 291, and that the initial letters f. o. b. were interpreted in that case as meaning a delivery of the goods at the designated place. But an examination of the case and of the opinion of the court below shows that the case was ruled against the plaintiff on the ground that the contract was an executory one, that the title to the lumber
It is contended further on behalf of the defendants that there can be no recovery here for the reason that the agreement between the parties is one of agency. If this were true the position would be tenable. This defense was not considered by the learned trial judge, his ruling in favor of the defendants being based solely on the ground that, the agreement required a delivery of the coffee at Pittsburg. As the view we take of the case requires it in any event to be sent back for another trial, we do not deem it necessary or proper to express an opinion on this branch of the defense under the testimony submitted on the trial.
The assignment of error is sustained, the judgment is reversed, and a venire facias de novo is awarded.