44 Pa. Super. 114 | Pa. Super. Ct. | 1910
Opinion by
The plaintiff brought this action of assumpsit to recover the contract price for eighteen tons of wrapping paper, under a contract evidenced exclusively by written correspondence. The contract stipulated for a delivery of the paper, by the plaintiff to the defendant, free on board the cars at Ausable Chasm, N. Y., at a specified price. The plaintiff did deliver a lot of paper, to the quantity required by the contract, free on board the cars of a common carrier, at the point designated, consigned to the defendant. With regard to the facts thus far stated there is no controversy between the parties. The affidavit of defense avers that the paper was not of the quality specified for in the written correspondence. We must for the purposes of this appeal assume the allegations of the affidavit of defense to be true. The affidavit of defense admits that the paper arrived at Lancaster, but avers that the paper could not be examined, for the purpose of ascertaining whether it complied with the contract, until after
“ A vendee who receives a thing into his possession, before he has become acquainted with its quality, has, if dissatisfied, but one of two courses to pursue; either to retain it and claim a deduction, or reject it and attempt to rescind the contract. In pursuing the latter, he has no contract to enforce. His game is to get rid of the bargain, by rejecting the vendor’s performance or part of it. To this end it is necessary that he exercise no act of ownership, or give the property no direction but what is necessary to send it in specie to the vendor. He is not at liberty to destroy it by wantonly exposing it; but on the refusal of the vendor to take it away he might leave it at his door, giving notice of the fact. But he might not send it to auction, because the necessities of the case would not require it:” Buffington v. Quantin, 17 Pa. 310. The affidavit in the present case does not aver any facts which could be held to establish that it was necessary to pursue the course with regard to the goods which the defendant elected to take; that is, sell them at public auction. There was no necessity for the sale and he had no right to so dispose of them. He placed himself in a position where it was no longer in his power to offer to return the goods and rescind the contract. The alleged offer of the defendant to ship the goods to whatever point the plaintiff might designate was accompanied by a condition which he had no right to impose. He had paid the railroad company freight to the amount of $114 and it had cost him $15.00 for cartage to remove the goods from the freight station to his warehouse, but for these expenditures he had no lien upon the goods. The contract had required him to pay the freight on the property from Ausable Chasm to Lancaster, and this he had done, but this did not subrogate him to the right of the carrier to assert a lien for the amount of the freight. His claim for the
The judgment is affirmed.