Pittsburg Glass Co. v. Doubleday, 2 Pa. Super. 170

Pittsburg Glass Co. v. Doubleday

2 Pa. Super. 170 | Pa. Super. Ct. | 1896

Opinion by

Beaver, J.,

(after stating the facts as stated in the above statement of facts) :

At the close of the plaintiff’s testimony on the trial in the court below, the defendant moved for a compulsory nonsuit. The motion was refused by the court and this refusal constitutes the first assignment of error. The second assignment relates to that part of the charge which reads as follows: “ I say, under the agreement that they have given here, I see no reason why judgment should not be rendered against the defendants for the amount of the order.” This instruction to the jury was undoubtedly erroneous, so far as that portion of the goods contained in the order and delivered prior to the 31st of December, 1891, is concerned. The defendants, however, suffered no injury thereby, for the plaintiff before closing its testimony expressly remitted the claim of $8.57 for goods delivered prior to the 31st of December, 1891, and asked judgment for the balance — $300.38—with interest from February 21, 1891, which seems to have been the amount of the verdict. Whatever may be said as to the adequacy of the charge of the court below, we do not see that the appellants suffered thereby. The entire contention of the appellants is that the goods ordered on the 21st of November, 1891, were packed and set apart in the factory of the plaintiff and that this, taken in connection with the rendering of the invoice for the same, constituted such a *174delivery at the time as vested the property in the North American Construction Company and relieved them, the appellants, from the payment of the claim, under the agreement of the 15th of April, 1891. It is doubtless true that as between vendor and vendee the acts above referred to constituted such a delivery as could have vested the title to the property in the North American Construction Company and would have done so, if the parties had so agreed: Commonwealth v. Hess, 148 Pa. 98. The appellants, however, entirely ignore the contract of sale which must be the law governing the parties. Keeping in mind the distinction between delivery which denotes the transfer of title and that which denotes the transfer of possession, it seems to have been the intention of the parties, as shown by their agreement, that the property was to be delivered, so far as title was concerned, in sixty days, and that shipments which changed the possession were to be made as called for.

“ Ordinarily and in the absence of an agreement to the contrary, the seller is under no obligation to send or carry to the buyer the goods sold. His duty is fulfilled by so placing them at the disposal of the buyer that they can be removed by him. Having done this, an action lies against the buyer for goods bargained and sold, even though the goods may never have left the seller’s possession: ” 21 Am. & Eng. Ency. of Law, 524. There is evidence that the defendants not only had the goods in their factory ready to fill shipping orders, if they had been received, but so notified Mr. Doubleday, the manager of the North American Construction Company. The law, therefore, would import delivery in accordance with the terms of the order for the goods which constitutes the contract between the parties thereto, at the end of sixty days from its date, which would be February 21, 1892. The appellants seem to admit that, if there was no actual delivery of the property on the 21st of November, 1891, the date of the invoice, as contended for, they would be liable, but only for $11.79, the amount of goods ordered shipped subsequent to the 31st of December, 1891, and prior to the 9th of April, when the remainder of the goods was destroyed. But this contention also ignores the agreement, under which the goods were “ all to be delivered in sixty days.” Under the terms of the contract made by the North American Construction Company with the plaintiff, the *175property in the goods ordered passed by virtue thereof to the former on the 21st of February, 1892. The appellants were therefore liable to the plaintiff for all of the goods embraced in the order of the 21st of November, 1891, except such as had been shipped prior to the 31st of December, 1891. The verdict included only this amount and the judgment entered thereon should be allowed to stand.

Judgment affirmed.

[Cf. Miller v. Seaman, 176 Pa. 291, opinion delivered July 15, 1896.]