168 Pa. 493 | Pa. | 1895
Opinion by
The scrap steel for the price of which this action was brought was sold by sample and to be delivered to the defendants at the place designated in the order for it. This sample was subjected to a chemical analysis, and as it proved to be satisfactory the merchandise in question was ordered on the faith of it. The material shipped in pursuance of the order did hot correspond in quality with the sample and the defendants refused to accept it. The contract was executory and the ownership of the property was not changed by it. The title to the latter remained in the plaintiffs subject to the defendants’ inspection and acceptance of it: Fogel v. Brubaker, 122 Pa. 7. The carrier was the agent of the plaintiffs and there was no delivery actual or constructive to the defendants. In fact it does not appear that all the merchandise sued for was conveyed to the place appointed for the delivery of it. One car load of it was hauled there, and the plaintiffs say they directed their agent to ship another car load of it to that point, but it does not appear that this direction was complied with. Assuming, however, that the agent obejmd instructions and that the second car load, as respects this issue, is on the footing of the first, did the defendant’s refusal to accept the material so shipped render them liable for the price of it ? Whilst it was demonstrated by the analysis that the steel scrap in question did not correspond in quality with the sample, there was uncontradicted evidence that it was taken from the same pile and was similar in external appearance. The defendants affirmed and the plaintiffs denied that the similarity or the want of it was to be ascertained by an analytical test, and in view of the instructions the fair inference from the verdict is that the jury sustained the plaintiffs’ contention in this par
In executory contracts for the sale of goods not specific, the measure of damages for the refusal of the buyer to accept the same is the difference between the price agreed upon and the market value on the day appointed for delivery: Unexcelled Fire Works Co. v. Polites, 130 Pa. 536. In that case “the plaintiffs made the carrier their agent for delivery but the goods in fact were not delivered. A delivery was tendered by the carrier when the goods arrived at their destination, but they were not received. The action therefore could not be for the price but for special damages for a refusal to receive the goods when the delivery was tendered.” The decision in the case referred to, and from which we have quoted, is in exact accord with the rule as stated in Benjamin on Sales, secs. 758 and 870, and is not in conflict with any decision of this court. We think it sustains the defendants’ contention in this case and that on the authority of it the judgment of the court below should be reversed. If the defendants were justified in their refusal to accept the goods they incurred no liability in consequence of it, but if they ought to have accepted the goods the plaintiffs were entitled to recover such damages as they sustained by the nonacceptance of them. As they failed to submit any evidence of damage the court should have directed a verdict for the defendants.
Judgment reversed.
