108 Pa. 55 | Pa. | 1885
delivered the opinion of the court, January 5th, 1885.
. This action is upon a contract dated February. 16th, 1882, struck by the plaintiffs’ acceptance of the following proposition : “We have tried the West Republic ore lately sent us, and find it satisfactory. We will take (5000) five thousand tons of it, at $10 per ton, at Ashtabula. Payments to be made for five hundred tons per month, beginning in May next. And we will advise you from time to time as to which road to send it by. Quality of ore to be up to the sample car load sent us.”
. For a correct understanding of the contract it is well to note the plaintiffs’ letter to the defendants,. dated January 18th, 1882; as follows : “We would like to send you a car or two of our West Republic ore to try for fix. It is equal to
■ These letters are not a part of the contract, but they explain how it came that the sample was sent, for what it was sent, and the price for which the plaintiffs proposed to sell. The sample was sent to be. tried for fix, was so tried, and thereupon the contract was made. It would be difficult for a man unlearned in the law to interpret that contract as- not obligating the plaintiffs to deliver West Republic ore of as good quality as that which was sent to and tried by the defendants. The quality of the ore cannot be up to the sample unless it be equal to it. Notwithstanding the plain terms of the contract, the plaintiffs contend it is°performed by delivering merchantable ore from the West Republic mine, though of inferior quality to the stipulated standard, and unfit for fix.
. The rule is almost universal that in a sale of goods by sample the vendor warrants the quality of the bulk to be equal to that of the sample. But in Pennsjdvania that rule is eschewed, and a sale by sample becomes a guaranty, only that the article to be delivered shall follow its kind, and be simply merchantable: Boyd v. Wilson, 83 Pa. St. 319. Yet in the opinion in tbat.ease it is reeogpized that something may be.said or done by the.- parties to the contract to make- the-- sample -a Standard of the .quality. And in Warren v. Philadelphia Coal Co., Id. 437, an action by the yendor of coal to recover the price, it was ruled that testimony was admissible that the seller had assured the buyer that a certain cargo of coal was of the same quality as he had been buying, whereupon he agreed to purchase it, and that said cargo was not so good. It was remarked that nothing in the common law rule stands in the way of a contract stipulation as to quality. To constitute a warranty no special form of words is necessary. The word warrant is not so technical, that it may :npt be supplied by others. A contract to deliver .gopds of a defined quality is, as capable of enforcement as gny other contract/ 'Theforegoing is not militated by Wetherill v. Neilson, 20 Pa. St. 448. There the contract as construed by. the court did not include an express undertaking that the goods should be up to or 'equal to a named standard. It was held to include no more than -a representation, .and in absence of warranty or fraud the buyer took the risk of the quality. Here a quantity of o,re was sent to be tried, and was tried'for a -specific purpose, was found satisfactory .fpr_ that purpose, and'the plaintiffs
Whether the contract was severable or entire depends on the intention of the parties. If the part to be performed by one party consists of several distinct items, and the price to be paid by the other is apportioned to each item, or is left to be implied by law, generally, the contract is held to be severable. So, where the price to be paid is distinctly apportioned to different parts of what is to be performed, though the latter in its nature is single. But the mere fact that the subject of the contract is sold by weight, and the value is ascertained by the price per pound, will not render the contract severable : 2 Par. Cont. 29-81. Here there were no distinct items in the subject for delivery, the whole was sold for a certain price per ton, and the buyer to pay for a certain number of tons each month. There was no expression as to the number of tons to be delivered per month, or when the delivery should be completed. The first payment was made before any ore was delivered, and though the defendants afterwards withheld payments, they alleged the withholding was because the ore was defective, not that the payments had not become due by reason of non-delivery of ore. Considering the language of the contract in connection with the conceded acts of the par ties under it, we think the contract was entire.'
. The seventh, eighth, twelfth, thirteenth and fourteenth assignments of error are not well taken.
The plaintiffs’ representation that their ore was equal to the best Old Republic ore, was not embraced in the contract. It may have induced the defendants to receive and test the car load of ore,.but the contract refers solely to the ore so tested as the standard of quality. Therefore the first assignment of error must be sustained. Much of the testimony proposed in the offer set out in that assignment was admissible, but not the plaintiffs’ representations respecting the Old Republic ore, nor the quality of that ore, and that the defendants had used it and knew its quality. If the ore delivered was inferior to that required by the contract, the fact cannot be shown by comparing it with ore from some other mine. So much of the charge set out in the fifteenth assignment as directs the jury to consider the evidence with reference to the comparison of the ore delivered under the contract with Old Republic ore, is erroneous. The parties so often referred to the Old Republic ore, in their previous negotiations and subsequent disputes, although it was not made the standard, that greater
It is undisputed that the sample was first class ore, and of good quality for fix, and that the best ores for that purpose are low in silica. As respects West Republic ore, it scarcely seems controverted that its value for fix depends on. the fact that it is low in silica and high in iron. The plaintiffs proved by one witness that he had sold a superior ore for fix which contained only fifty-two per centum of metallic iron, but it had other qualities which made it almost impervious to heat; they do not claim to have furnished to the defendants that kind of ore. They claim that the ore delivered and received was equal to the sample, and the defendants claim that it was inferior because not properly selected and culled. The testimony respecting the quality and uniformity of the ore delivered under the contract was conflicting; that adduced by one party tending to show that the sample was clean, lumpy and very uniform, and that the ore subsequently delivered did not compare at all with the sample; and that adduced by the other tending to show the ore was equal to the sample. To determine the pertinency of the evidence alleged to have been improperly admitted, the uncontroverted facts, as well as the controverted, must be considered.
The third assignment is not sustained. The testimony of Otto Wuth, in connection with other evidence, tends to show that the ore delivered under the contract was unfit for fix, ununiform and badly culled; that some of it had a high per centum of iron and was of good quality, but was so mixed with rock and inferior ore that the mass was not first class, and contained so much silica that it was unfit for fix.
The testimony on the part of the defendants shows that before and at the time of loading the ore on the cars, men were employed in culling, and the plaintiffs contend that work was thoroughly done. Within a few weeks before the trial, and more than a year after the last delivery, two boxes were filled from the fall of an unculled pile of the plaintiffs’ ore, and in presence of the jury exhibited to an expert, who testified that it was a mixed-up mass, some of it rock, some second class ore, and some good first class ore, and the great trouble was want of uniformity. The fourth and fifth assignments are sustained.
If the jury found that the ore delivered under the contract was unfit for fix because it was not so good and uniform as the sample, still it had some market value for other purposes. If uniformity was essential for best results for other uses, it was competent to show that fact, to be considered in deter
It was incompetent to prove the difference in value between the sample and other ore. The mode of ascertaining the damage was indicated in the affidavit of defence. Were the cause'not to be reversed on other grounds than the matter which is the subject of the second assignment, it would be necessary to inquire whether the answer of the witness was harmless.
On July 31st, 1882, the defendants, having stopped shipments, wrote to the plaintiffs that they would not receive or take off the cars any more ore that was not fully up to the standard. September 30th they wrote again, saying they would make another trial of the ore, and unless it would be equal in every respect to best No. 1 Republic, they would decline to receive or unload it. To that the plaintiffs replied that they would give what was contracted for, No. 1 West Republic ore. From that date, October 3d, there was no complaint ozi the one side, nor inducements, and z-epz’esezztations on the othez% as to the quality of the ore, until January 9th, 1883, whezr the defendants stopped shipments, on the ground that in the furnace the ore yielded no moz’e than 60 to 62 per cezituzn of metallic iron. There is no evidence that any of the ore shipped after the 3d of October was received under protest and held for the plaintiffs ; no protest was made until •after it had beezr taken by the defezrdants from the cars; and repeatedly the plaintiffs were urged to speed the shipments. The z’espective dates for fixing the market price are the dates the defendants received the ore, and the ninth and tenth assignments are sustained.
The defendants admit indebtedness to the plaintiffs. A dispute has arisen respecting the performance of the contract by the plaizrtiffs, and the amount of the debt, but however determined, the debt arises from cozitra'ct. The jury were instructed that in their discretion they could allow or disallow interest on the balance due as they should think proper under the circumstances. That question was not for the juzy. In-* terest shall be allowed in all cases of' contract where it is the duty of the debtor to pay money without a previous demand by the creditor. When a definite time is fixed for the payznent of money the law imposes the obligation to pay damagesbjr way of iziterest at the legal rate, for the detention of the money after the breach of the contract for its payment: Foote v. Blanchard, 6 Allen 221. The right to interest upon money owing upon contract depends not ozi discretion, but upon legal right: Dana v. Fiedler, 12 N. Y. 40; Adams v. Fort Plain Bank, 36 Id. 255. “ It is a legal azid uniform rate of dam
Judgment reversed and venire facias de novo awarded.