2 Pa. Super. 208 | Pa. Super. Ct. | 1896
Opinion by
1. The proof of the contract out of which this litigation arose consists wholly of letters and telegrams which passed between the parties. The plaintiff, who is a dealer in old rails, scrap iron and metals at Cincinnati, made an offer to the defendant, who is an iron and steel broker at Pittsburg, to sell him eighty tons of thirty-five pound relaying iron rails with splice bars attached, for $19.00 per ton at Cincinnati, subject to demand draft with bill of lading attached. On July 24, 1894, the defendant telegraphed in reply to this offer: “Ship the re-layers to Jacksonville, Fla., and secure us the lowest rate of freight. Our conditions are for quick shipment. Particulars by letter.” On the same date the plaintiff replied: “We have your telegram of even date and await your further commands in regard to the iron relayers.” We quote these telegrams in full, because it is earnestly argued by the plaintiff’s counsel that the defendant’s telegram completed the contract, and that any assertion of quality by the plaintiff afterwards, even if it Avoulcl amount to a warranty had it been made earlier, could not be enforced as a warranty then, because not being a part of the original contract of sale it was based on no consideration. The cases cited sustain the proposition that the warranty must be upon the sale, and that any subsequent or collateral contract of warranty must arise from an express promise to warrant, and that upon a new consideration distinct from that of the sale itself: Hogins v. Plympton, 11 Pick. 97; Summers v. Vaughan, 35 Ind. 323. It is not necessary to discuss this general rule or the exceptions to it, for it is manifest that it can apply only to a case where the contract is complete, where there has been a full meeting of minds upon all the terms of the contract. To constitute a contract the acceptance of the offer must be absolute and identical with the terms of the offer. If one offers another to do a definite thing, and that other person accepts conditionally, or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat, or it is in effect a counter proposal. This is elementary law. Now two things are apparent; first, that the defendant’s telegram did not contain all the terms and conditions upon which he accepted the plaintiff’s offer; second, that the plaintiff did not..understand that it did. They were contained in the letter
This is an action on a draft for $747.07 drawn for part of the price and accepted by the defendant, before he was informed that the rails were not of the kind and quality represented and contracted for in the foregoing negotiations.
In determining what the terms of the contract were we are of opinion that the whole of this correspondence should be taken into consideration but, at all events, it is very clear that it was not a fully completed contract when the defendant’s telegram of July 24th was sent and received. The letter following it and the plaintiff’s reply are part of the negotiations which led up- to the contract and are not mere gratuitous assertions made afterwards. Thus viewing the evidence we hold that the learned judge was clearly right in instructing the jury that “ the terms of sale agreed upon by the parties was that the plaintiff was to furnish to the defendant sixty-six tons of thirty-five pounds to the yard, A No. 1, first class relaying rails on board cars for shipment to Ocala, Florida, and it was understood by all that they were to be used in laying track for a railway, and were not for scrap.”
2. Having ascertained what the contract was, let us inquire whether there was a breach. As we have seen, the plaintiff delivered iron rails which were used, therefore, it is argued that they were reasonably fit for the use for which they were purchased, and that the jury should have been so instructed. This does not follow. Stress of circumstances may compel a man to use an article which is not reasonably fit for use. There was evidence that the defendant’s vendee was under such compulsion. But however that may have been, the fact that the rails could be and were used is not conclusive of the question
It may be conceded that in the sale of a chattel there is no implied warranty of quality, i. e. the goodness of the tiling. The purchaser must use his own judgment, or if he is not willing to use his own judgment, he must see that the terms of the contract secure to him what he wants. If the subject of this contract had been simply iron relaying rails there would have been no implied warranty that they were first class relaying-rails. But the plaintiff promised to deliver and the defendant promised to pay for iron relaying rails of a particular grade and quality, known in the market as first class or A No. 1. The defendant endeavored to secure to himself by the terms of the contract the thing he wanted. To say that the terms of this contract were complied with by the delivery of rails of an inferior grade and quality is to ignore the rules of fair dealing which a layman would suppose ought to govern such a transaction, and which fortunately do govern according to numerous decisions of our courts in well considered cases. In Warren v. Phila. Coal Co., 83 Pa. 437, Mr. Justice Woodwakd, after commenting on the common law rule that there is no warranty of quality implied in the sale of a chattel, said: “Nothing in the common law rule on this subject stands in the way of a contract stipulation as to quality, between a vendor and purchaser. ... To constitute an express warranty no special form of words is requisite. The word warrant though it is the one generally used, is not so technical that it may not be supplied by others. It is enough if the words used are not dubious or equivocal, and if it appears from the whole evidence that the affirmant intended to warrant, and did not express a mere matter of judgment or opinion: Jackson v. Wetherill, 7 S. & R. 480. A contract to deliver goods of a quality as well as a species defined and fixed is as capable of enforcement as any other contract.” Applying the principle to a case where a quantity of ore was sent to be
All of the authorities agree that there is an implied warranty that the article delivered shall correspond in specie with the commodity sold, unless there are facts and circumstances to show that the purchaser took upon himself the task of determining not only the quality of the article but the kind he purchased . Certainly the contract under consideration Avould not have been complied rvith by a delivery of wooden rails or of iron rails that could not bo relayed; Avhy should the term “ iron ” or “ relaying ” be regarded as any more essentially descriptive of the thing contracted for than the Avords “ first class A No. 1.” It Avas that kind of rails that the plaintiff undertook to deliver and the defendant to pay for. If we are right in holding that this Avas the undertaking there is no difficulty in distinguishing the case from that class of cases in Avhich it is held that a warranty is not implied from mere representations of a seller made in praise and commendation of his wares. It is not ahvays easy to draw the line and determine Avhether a case belongs to that class or to the class of those above cited, but we are clearly of opinion that this case belongs to the latter class and is. governed by the principles enunciated in Warren v. Phila. Coal Co., supra.
It is argued with much force and plausibility by the appellee’s counsel that the warranty is established by the admissions in the pleadings. In the view taken by the court below and by us of the contract as established by the correspondence it is unnecessary to consider that question, and the admission of the evidence'specified in the first assignment of error was harmless, even if erroneous.
All of the questions raised by the appeal have been passed on and separate discussion of each assignment of error is not required.
The fifteenth assignment of error is sustained, and the judgment is reduced from $209.34 to $57.45 as of February 20, 1896. The other assignments of error are overruled and as thus modified the judgment is afiirmed.