270 Pa. 378 | Pa. | 1921
Opinion by
The plaintiff brought this action in assumpsit to recover damages for the breach of a contract of sale. Its right depends on the construction to be placed upon the dealings between the parties as disclosed by the record. An offer was made to purchase at a fixed price “150 barrels of skimmed condensed milk, Government Standard.” This proposition was accepted in a letter which stated: “This order subject to approval of a 5-barrel sample, which we will ship at once to you.” The vendor failed to forward the sample, and, on request, refused to do so. The plaintiff then purchased like materials in the open market, and now asks that he be indemnified for the loss sustained. In reply, the defendant denies the consummation of the contract, insisting that the minds of the parties had not met upon the quality of the commodity to be delivered, and no liability was therefore created.
If the agreement to sell was qualified, and something further remained to be done before both vendor and vendee obligated themselves, then no contractual relation was established. “One party to a contract is not bound thereby, when it does not bind the other party; when there is no liability there is no obligation”: 1 Parsons on Contracts 486; 1 Page on Contracts 452. In the present case, the company was not required to receive the goods unless the sample should be approved. It is true that the milk was to be of “Government Standard,” yet there might be reason why the vendee would be justified in refusing to accept it, though the sample disclosed the percentage of solids required by that test. Until the vendee agreed to take the milk of the quality which the vendor was prepared to sell, there was no completed contract.
An acceptance of an offer must be unqualified to be effective. If new conditions be added, unless they relate to immaterial matters, or are such as are implied in law (Morse v. Tillotson & Wolcott Co., 253 Fed. 340), no liability is created, and such was the situation here. This
It is suggested the proposed vendor was in default in not submitting his samples. That is so, but it does not alter the situation. “Since there can be no contract without an offer and acceptance, the fact that the offerer by evasion prevents an acceptance of his offer will not cause a contractual relation to be established”: 13 C. J. 294. The learned court below was correct in the view taken, and properly sustained the statutory demurrer.
Attention may be called to the pleadings here filed,— not as affecting the determination reached, but to indicate the practice which should be observed in like cases. A statutory demurrer was interposed, whereupon a rule for judgment for want of a sufficient affidavit of defense was entered. Section 20 of the Practice Act of May 14, 1915, P. L. 483, provides in part: “The defendant in the affidavit of defense may raise any question of law, without answering the averments of fact in the statement of claim; and any question of law, so raised, may be set down for hearing, and disposed of by the court.” A substitute has thus been provided for the common law demurrer, and the like method of determining the legal proposition involved should be followed. “When the defendant has filed his demurrer, he should serve a copy on the other side, and order it down on the next argument list”:l Brewster’s Practice 1102.
Obviously, a rule for judgment for want of a sufficient affidavit of defense is improper. No judgment could be entered, though the court was of the opinion that the position taken by the defendant in his pleading was not sustained, since, in such event, the defendant is neces
The judgment is affirmed.
