276 Pa. 467 | Pa. | 1923
Opinion by
This action was brought by plaintiff to recover back part of the purchase price, paid by him for merchandise bought from defendant and shipped by it to plaintiff, sight draft against bill of lading. The latter paid the draft, and, upon receipt of the goods, found, so he claimed, they were not in accord with the agreements covering their sale and were short in weight. The verdict was in plaintiff’s favor and defendant has appealed.
The circumstances connected with the transaction between the parties, as disclosed by the record, are that at defendant’s place of business they entered into a contract in writing for the purchase of “approximately
A few days after executing the contract for the 20,000-pound lot, plaintiff received a telephone call from an unidentified person, whom he understood to be a girl in appellant’s employ, regarding the additonal 10,000 pounds. She informed him she was speaking from defendant’s place of business, that its president was out of town, and had instructed her to say to plaintiff that he could have the balance of the ticking. The latter inquired whether this was the 10,000 pounds at the warehouse to be washed, and was answered that it was; he then told her to hurry it to the laundry and to hold the 20.000 pounds previously purchased and ship the two lots together, which was done, the plaintiff receiving the entire 30,000 pounds in -one shipment. In addition to the circumstances here detailed, a letter from appellee to appellant and the latter’s reply have a bearing on the controversy. On October 20th, two days after the making of the written agreement, plaintiff wrote defendant, “We would also thank you to let us hear from you regarding the 10,000 pounds which you stated was
The principal question in the case is whether the 10,000 pounds of material was sold under the written contract, or whether it was outside of that contract and the subject of an independent oral agreement. The position of appellant is that it was included in the written agreement and that the effect of receiving parol testimony as to the terms of sale is to vary the writing.
It cannot be successfully maintained that the 10,000-pound lot was included in the first contract; the very words of that paper indicate it was not, as do the expressions in the letters which have been quoted. Furthermore, plaintiff had inspected the 20,000-pound lot and had not seen the other one. The jury, believing plaintiff’s statement, had full warrant for finding defendant had expressly excluded the second lot from the contract because of the existing option on it.
The items embraced in plaintiff’s claim are the expense of washing the 10,000-pound lot, an allowance for the loss of weight which this caused, and the excess paid to defendant by reason of a further shortage in weight of the merchandise delivered. As both parties contend that the additional lot of 10,000 pounds was to be of the same character as the original quantity sold, and as plaintiff testified that was washed, and the president of defendant that some of it was washed and some not, this dispute
One- of the assignments of error raises the question of the admissibility of the correspondence. The only objection made to it was that plaintiff’s letter was a self-serving declaration. As it admittedly had been received and replied to before the 10,000-pound lot was shipped, we cannot see how it could be said to be in any sense self-serving; had it been written after the shipment such a criticism might apply.
The interesting question, raised by another assignment of error, whether the telephone conversation between the girl, she being unidentified, and plaintiff was admissible in view of the fact that the material, the subject of the conversation, was subsequently shipped to plaintiff, need not be passed upon, because defendant' did not object to the conversation on the ground that the person engaging in it was not identified, but for the reason that it was an attempt to vary the terms of the written contract, which, in our view of the case, it was not. It may, however, not be amiss to point out, that telephone conversations with unidentified persons have been received in evidence, where circumstances following the conversation indicate that the person who spoke was speaking with authority: 22 Corpus Juris 193; 1 Ruling Case Law 477. Save for the telephone conversation, there is no explanation of the shipment of the 10,000-pound lot.
In addition to being permitted to recover for the cost of washing the material and the loss of weight consequent thereon, plaintiff had included in its verdict an allowance for shortage in weight amounting to 915 pounds. The contention of appellant is, that it was error to permit a recovery for this item, because it was not' shown that the weight of the materials when delivered to the carrier was not as billed by appellant. It depended for establishing the accuracy of the weight on the testimony of a public weigher, who weighed the materials on October 10th. They were not delivered to the carrier until October 28th and the public weigher had no knowledge of what happened to the goods in the meantime. According to the bill of lading, the weight of the shipment was as claimed by plaintiff. Under the evidence, the question of the weight when delivered to the carrier was for the jury.
There was a question raised by plaintiff on the trial as to the trade meaning of the words “net weight” as used in the contract. Testimony was received to estab
We discovered no reversible error in the record and the judgment is affirmed.