213 Pa. 402 | Pa. | 1906
Opinion by
Plaintiff bought of the Huff Company some thousand pounds of green coffee, at specified prices, and received an invoice showing the kinds and the quantity of each. Payment was made partly in cash and partly in a note subsequently paid.
The purchase was made in the office of the Huff Company and plaintiff did not see the coffee, but bought on description, as he had done in previous dealings. Plaintiff was a retail dealer who did not sell green coffee, and he testified that the arrangement was that Huff should put the coffee aside for him, mark it, and keep it stored until he gave orders for roasting. No charge was to be made for storage if Huff did the roasting, and a written memorandum to that effect was put on the invoice. All this was in accordance with the custom of the parties in dealings for several years previously.
The coffee was in the storage,- room on a different floor, and was in bags piled up according to convenience, the kinds being kept separate. ■ On the day of the sale, or the next day, the plaintiff’s purchase was set apart in different piles from the Huff stock, in the same room, and on the front bag of each pile a tag was sewed, giving the purchaser’s name and address, the kind of coffee, and the number of bags. Exactly how this was done is thus detailed by the witness : “We took the order for the first item of coffee, whatever it called for; I went to the piles and found how much was in the pile, and if there was enough in that pile to make it, I marked it, and if there wasn’t I would go to another until I did get enough; and if there was too much in the pile, I would take away until there was enough left to make out the amount.” “ Q. Now, take this order of 7,000 pounds of Mocha coffee; tell us how you put that up and what you did. A. That first order was in three separate piles; each pile was marked with a tab to the front bag, sewed on — how many bags there were in the order and what kind it was, so anybody could see it as they would go along through the aisle. . . . . Q. Now, Fas there any weighing done by you? How did you ascertain that the fifty-four bags marked there in the left hand margin amounted to 7,000 pounds ? A. There were five bags taken off the pile and weighed and the average weight of the bags estimated from those five, and then counted from that.”
The facts not being disputed, the judge below directed a verdict for plaintiff, reserving the question of law “ whether
We have already had occasion at this term (Duplex Press Co. v. Clipper Co., ante, p. 207), to say that while this is a permissible form of reservation in an appropriate case, it is not a good form for general use and is not appropriate here. A reservation whether on all the evidence the plaintiff is entitled to recover, would have been bad in form, and yet there is no real difference between that and the question reserved here: Casey v. Pennsylvania Asphalt Paving Co., 198 Pa. 848; Mayne v. Fidelity, etc., Co., 198 "Pa. 490. There is no difficulty in ascertaining and expressing the real question at issue and intended to be reserved here. It is very clearly stated by the learned judge himself in his opinion; the real question reserved was whether the setting apart of the coffee as shown by the uncontested evidence was a good delivery as against the vendor’s creditors. Where, as in this case, the reserved question is susceptible of clear and simple statement, it is much the better practice to so state it, and thus raise the issue of law directly.
As the learned judge below, however, dealt with the case on the basis of the real question, the error in form becomes immaterial.
On the main question of delivery the judgment is affirmed on the opinion of the court below.