39 Pa. Super. 100 | Pa. Super. Ct. | 1909
■Opinion by
It is conceded the plaintiff company and the defendants entered into a contract, the former to sell, the latter to buy, a car
The shipment consisted of 279 sacks of nuts. Upon the arrival of the car in Philadelphia, the defendants, having first secured the services of an expert, took him to the car and had him open some of the sacks, twenty-five as he testifies, and inspect the contents. They themselves opened perhaps as many more. On December 1 they wired to plaintiff, “cannot accept car pecan nuts, they are not up to grade as per contract;” and on the same day confirmed this by a letter more fully stating the result of the inspection and their determination to reject the nuts because of their alleged inferior quality. Thus was raised an issue of fact, the only one as to which the testimony developed any serious contention between the parties. As the case was tried this question was fairly submitted to the jury, and their verdict conclusively establishes that the quality of the nuts was up to the contract standard and the defendants’ breach was without justification. What then was the true measure of plaintiff’s damages?
The appellants present twenty-two assignments of error. The first, second, third, sixth,, eighth, ninth, thirteenth, fifteenth, seventeenth, eighteenth and nineteenth are manifestly in violation of the rules of this court, and the motion to quash
It is first contended that the point of delivery, under the contract expression “f. o. b. Texas,” was Texas. That if the plaintiff, accepting the letter of October 23 as a final repudiation of the contract by the defendants, chose to exercise its right to sell the goods on the market, and recover, as damages, any difference between the contract price and the market price, it was obliged, under the law, to select the market existing at the time and place named for delivery, and therefore should have sold the nuts in Texas. To this proposition the record discloses two answers. After the plaintiff had given notice of its determination not to permit a cancellation of the contract, it was not obliged to assume that if the car reached its destination in due time, loaded with the quantity and quality of goods contracted for, the defendants would insist on a fiat repudiation of their engagement. Every fair presumption of law or morals would seem to support the opposite conclusion. And so it appears that when the car reached Philadelphia, the defendants themselves were not willing to stand on the ground that they had already and finally repudiated their contract. They then undertook, as already stated, to open up the goods, inspect the quality and then by telegram and letter based their final rejection on the allegation that the plaintiff had failed to comply with the contract. Had the controlling fact been found by the jury in their favor, their position would have been impregnable and the plaintiff left without a cause of action. With the finding adverse to them they are in no position to assert that they had finally committed themselves to a repudiation of their contract before the car left Texas.
But the testimony shows, and it is uncontradicted, that when the time for shipment, fixed by the contract, had arrived, the Texas market had “slumped,” “there was no market,” and that if a sale had been forced there, only a nominal price for the goods would have been received. Without attempting to recite the testimony in detail we may say it further appears that, by bringing the car of nuts to Philadephia, and then going to the
The defendants were earnestly urged to keep their contract and accept the car; but they firmly adhered to the position that the goods offered were not those contracted for and hence they were not bound. They were notified that unless they accepted within three days “we would have to resell the car and sue him [them] for the difference.'
Judgment affirmed.