Somerset Door & Column Co. v. O. M. Weber Co., 43 Pa. Super. 290

43 Pa. Super. 290 | Pa. Super. Ct. | 1910

Opinion by

Orlaby, J.,

The contract between these parties is founded on their correspondence, beginning with a letter from the defendant dated June 12, 1907, at North Wales, Pennsylvania, which was circular in form, addressed to a number of parties, and directed among others to the plaintiff at Somerset, Pennsylvania. The letter opens with the statement, “We need the following list of tin lined doors,” and then enumerates a list of sizes and qualities, after which the following information is requested: “Kindly advise what

you count these tin lined doors per square foot, same to be delivered f. o. b., Philadelphia. . . . We prefer having a price per square foot, as the sizes enumerated are not exact, as the building is not up and the openings are not made as yet.” To this circular letter the plaintiff replied on June 13, “Can furnish doors as pr. your inquiry f. o. b., Phila., Pa., at 16c. pr. sq. ft.” Six weeks later, July 25, the defendant wrote: “We thank you for your proposition of the 13 ult. We would ask that you kindly book our order for the following to be shipped to Philadelphia,” giving the details of the doors desired, and concluding “kindly acknowledge receipt of the order.”

The first letter of inquiry was not in form or substance an order for goods, and did not bind anyone. It accomplished its purpose in securing the desired information, and the defendant, with the knowledge of the price sug-' gested in the plaintiff’s letter of June 13, then gave a definite order for the doors on July 25. The situation was so regarded by the defendant, and the letter of July 25 designated “our order” in the opening and closing sentences. The order was to be booked as of that time and was so regarded by the plaintiff who on the following day, July 26, accepted it by a letter as follows: “We have your order for doors and same will receive our earliest attention. We to-day place order for material for same, as we do not carry that in stock.” All doubt on this phase of the case is settled by the defendant’s letter of July 31, viz.: “We thank you for your letter of the 26 inst. in which you acknowledge receipt of our order of the 26 inst. Our plan is after the usual construction, and according to the Underwriters’ specifications. Kindly acknowledge receipt of this letter, and advise approximately when we can expect shipment.”

On August 7 the defendant again wrote: “We have no acknowledgment of our letter of 31st ult. Kindly advise whether you received this letter.” To which the plaintiff replied on August 8: “We have your order and letter, and on account of oversight and absence of the writer failed to answer. We have ordered the material for the doors which we could not get here and will take two weeks at least yet to come in,” etc. And on August 21: “The material has arrived and will start your doors on the 22nd, and will rush them through as fast as possible.” The goods were shipped from Somerset, Pennsylvania, on August 27, from O. M. Weber Co. consigned to O. M. Weber Co., Philadelphia, with an order on which the freight was paid by the defendant. When they were received by the defendant, and after some of them had been inspected, all were rejected as not having been made of the proper material, and notice was given to the plaintiff that they were held subject to its order.

The principal question is whether the contract was concluded at Philadelphia, where the goods were delivered f. o. b., or at Somerset, where they were manufactured. The trial judge held that the contract was made in Somerset, Pennsylvania, for the reason. that the defendant’s order of July 25, and the plaintiff’s acceptance of July 26, constituted the contract between the parties. The letters f. o. b., Philadelphia, were intended to fix a price beyond which no charge could be made against the vendee either by shipper or carrier, and did not necessarily imply that they were to be delivered at Philadelphia as a consummation of the contract. The freight was paid by the appellant at destination and credit allowed on the prices quoted: Werner Saw-Mill Co. v. Ferree, 201 Pa. 405; Hatch v. Oil Co., 100 U. S. 124. The doors were rejected because they were made of yellow pine instead of white pine, yet white pine was not specified or mentioned in the original order, and they were made strictly in accordance with the terms of the order. The burden of proof was on the defendant to show that white pine was intended and that it should-have been so understood by the plaintiff. It was contended that, while there was nothing in the original order to call for white pine, yet in the letter of July 31 which was prior in date to the making of the doors, the attention of the plaintiff was called to the fact that certain requirements were exacted, viz.: “Our plan is after the usual construction, and are according to the Underwriters’ specifications.” This it is urged was notice of a custom of trade which determined the character of the product. However, when the letter of July 31 was written, the defendant knew (by plaintiff’s letter of July 26) that all of the material for the doors had been ordered; It is well settled that the trade customs which the law recognizes as governing the performance of a contract and controlling in such cases are only the law and trade customs of the place of performance of the contract: Guillon v. Earnshaw, 169 Pa. 463. This contract was both made and performed at Somerset, and if the particular trade custom alleged did not exist there by notorious, universal and well established usage or was actually known by the plaintiff, it would not avail as a defense. The existence of such a custom of trade and all knowledge of it was denied by the plaintiff. This raised a question of fact, which was fully and clearly explained and submitted to the jury both in the general charge and in the eleventh point and its answer. The plaintiff denied that it had any knowledge of any rules issued by an underwriters’ association, and that no notice having been given to them of such an association in the original order, they were not bound by the specifications required by such rules. The effect of the lack of inquiry on this matter was so fully and carefully explained to the jury that the defendant has no ground of complaint. The case was tried and submitted with great fairness. We do not find any reversible error in the answers to the eleventh and nineteenth points for charge or in the instruction as to the effect to be given to the underwriters’ specifications as a part of the contract.

The judgment is affirmed.