270 Pa. 443 | Pa. | 1921
Opinion by
The plaintiff is a coal mining corporation, with headquarters at Greensburg, Pa., and defendant is a corporation engaged in the coal business with principal office in Philadelphia. In April, 1917, plaintiff sold defendant a sample lot of ten cars of best run of mine Irwin gas coal which, at defendant’s request, was delivered to its customer, the Martin Dyeing & Finishing Company of Bridgeton, N. J., and proved satisfactory. Thereafter, in May, 1917, plaintiff entered into a written contract to sell defendant eleven thousand five hundred tons of coal, same quality as the ten-car sample, to be delivered to said Martin Company at approximately a thousand tons a month. Satisfactory deliveries were made during May and June, but in July the Martin Company refused to accept a shipment of ten carloads of the coal on account of alleged defective quality. Defendant, upon inspection, justified such refusal on the claim that the contents of the last-named ten cars were more than one-half foreign matter, consisting of limestone, slate, clay, etc., rendering-the same unfit for fuel and being entirely different from and inferior to the sample lot. All of this was denied by plaintiff, who tendered further shipments during July and August, in amounts complying with the contract, which' were refused without inspection. In September, however, after some negotiations, deliveries were renewed and continued without further complaint until the end of the term specified in the contract. The coal so rejected in July and August was resold by plaintiff at a loss of $4,001.76, to recover which, with interest, this suit was brought. Defendant set up the alleged defective quality of the coal so rejected and also claimed an offset of what its profits would have been thereon. The case hinged on the quality of the rejected coal and as to that the evidence was very conflicting. The jury found for the plaintiff for the full amount of its claim, and, from judgment entered thereon, defendant brought this appeal.
The trial judge affirmed, without qualification, plaintiff’s fifth point, viz: “The contract in this case was between the plaintiff and the defendant, and the coal could be rejected by the defendant only if the defendant was persuaded that it was not tendered in accordance with the contract. The mere fact that the defendant’s consignee was dissatisfied with the coal is not sufficient to warrant the defendant in rejecting it unless the defendant was so persuaded. If the defendant could have sold the coal to any other customer and thus lived up to its obligations under the contract, it was bound to do so. There is no evidence that the defendant sold or attempted to sell either the ten cars rejected in July or the balance of the July and the August shipments to any of its other customers,” The last part of this point
Defendant did not cancel or attempt to cancel the contract, therefore it would be liable for the loss sustained by plaintiff on coal, if any, refused in July and August, which in quality was equal to the sample, whether such refusal was made upon or without inspection.
For the reasons above stated, the judgment is reversed and a venire facias de novo awarded.