Samuel v. Delaware River Steel Co.

69 Pa. Super. 605 | Pa. Super. Ct. | 1918

Opinion by

Kephart, J.,

The appellant purchased by description from the appellees roll scale, a by-product of a rolling mill, to be delivered at its mill in Chester, Pennsylvania. The appellees shipped mill cinder, which is a commodity different in substance and value from roll scale. It was received and used without complaint or offer to return. The appellees brought this action to recover the price of roll scale, while the appellant contends it is liable only for the value of mill cinder. The court below held that there could be a recovery on the contract price for roll scale, though mill cinder had been received. The shipment was by car load, consigned to the vendee and delivery made in its yard. The defendant, before trial, paid for the mill cinder at its market value and the judgment was for the difference between that value and the contract price of roll scale. The learned judge of the court below says: “Roll scale (as compared with mill cinder) is a distinct kind or species of property and if nothing more appeared, there was an implied warranty, that the commodity delivered was in fact roll scale, and the defendant had the legal right to receive and use the commodity delivered, and hold the plaintiffs liable upon their implied warranty.” But the court fell into error when it affirmed, as a proposition of law, that where the vendee receives an article of a different kind from that ordered and without an effort to redeliver, or, where the vendee, without protest or complaint, accepts and uses the article, he thereby waives the warranty, or treats the warranty as performed and is liable on the contract price.

There is always an implied warranty in the sale of a chattel by description or sample that the article shall be of the kind ordered or purchased: Borrekins v. Bevan and Porter, 3 Rawle 23; Selser v. Roberts, 105 Pa. 242. The vendor does not impliedly warrant the quality of the particular kind: Whitaker v. Eastwick, 75 Pa. 229; Warren v. Philadelphia Coal Co., 83 Pa. 437; Joseph v. Richardson, 2 Pa. Superior Ct. 208. If the vendee wishes the warranty to cover the quality of the chattel purchased he must provide for it in his contract. Where chattels of a certain kind are purchased and the vendee has an opportunity to inspect them before acceptance, and after such inspection, knowing the inferior quality of the kind sold, accepts and uses the goods, he will be liable for the contract price: Luella Coal & Coke Co. v. Gano, 61 Pa. Superior Ct. 37; Noble v. Erwin, 50 Pa. Superior Ct. 72; Warren v. Philadelphia Coal Co., supra; Whitaker v. Eastwick, supra; Fogel v. Brubaker, 122 Pa. 7; Joseph v. Richardson, supra.

It was first held in Borrekins v. Bevan and Porter, supra, ""In all sales (certain exceptions noted) there is an implied warranty, that the article corresponds in specie with the commodity sold.” This doctrine has since been substantially adhered to in a number of cases. Our former president judge collects many of the authorities in Joseph v. Richardson, supra. There a dealer had contracted to sell first-class, A-No. 1 iron relaying rails. The judge says: ""Certainly the contract under consideration would not have been complied with by a delivery of wooden rails or of iron rails that could not be relaid ......the thing contracted for......(were) "first-class, A-No. 1’ (relaying rails). It was that kind of rails that the plaintiff undertook' to deliver and the defendant to pay for.” This was later followed by an opinion by the same judge in Armstrong v. Descalzi, 48 Pa. Superior Ct. 171, where a warranty appeared from the correspondence. It was held that- the jury was to determine whether the fruit received and used was of the kind or class ordered, and if it were not of the class ordered, the vendors were liable for a breach of the warranty.

As it affects the question under consideration, there is no differeficé in legal effect between an implied warranty and an express warranty: Borrekins v. Bevan and Porter, supra. The acceptance of goods not ordered without protest or complaint will not estop the vendee from setting up the breach of the implied warranty when sued for the contract price of the chattel ordered. Where there is a warranty, as there must be of the kind ordered, redelivery or an attempted redelivery of the goods not ordered is not necessary to sustain the vendee’s claim for breach of the implied warranty. The vendee may accept these articles and, if the contract price has been paid, sue on his warranty, or he may rescind his contract by returning the goods: Borrekins v. Bevan and Porter, supra; Joseph v. Richardson, supra; Armstrong v. Descalzi, supra; Holloway v. Jacoby, 120 Pa. 583; Pyott v. Baltz, 38 Pa. Superior Ct. 608; Selser v. Roberts, supra. The measure of damages for breach of warranty where the contract price has been paid will be the difference between the value of the article delivered and the value of the commodity sold at the time of delivery: Borrekins v. Bevan and Porter, supra; Shoe v. Maerky, 35 Pa. Superior Ct. 270; Himes et al. v. Kiehl et al., 154 Pa. 190; Miller Lock Co. v. Diehl Mfg. Co., 37 Pa. Superior Ct. 585; Raymond Bros. Co. v. Penna. Black Filler & P. Co., 42 Pa. Superior Ct. 601; Reynolds v. Ramsey, 56 Pa. Superior Ct. 97; Otis Elevator Co. v. Flanders Realty Co., 244 Pa. 186-190. When the goods are not paid for, recovery can be had only for their market value at the time of delivery.

The judgment of the court below is reversed and the record is remitted with directions to enter judgment on the defendant’s motion for judgment n. o. v.