Bascom v. Danville Stove & Manufacturing Co. , 182 Pa. 427 ( 1897 )

Opinion by

Mr. Justice Green,

We discover nothing wrong in the first assignment of error in this case. There certainly was no express warranty established on the trial, but the learned court below charged that the patterns should be reasonably fit and suitable for the purpose for which they were designed, and added, “ If they were not, and the defendant by reason thereof has sustained damage to an amount equal to, or greater than, the contract price, then you must find for the defendant.” Certainly this is all the defendant could ask. When the court further said that if the jury found that the damage was less than the contract price, “ then if the patterns have any value for any purpose, notwithstanding their unfitness for the use for which they were intended, the plaintiff might be entitled to recover such value,” the connection in which this was said must be considered. The whole subject had been gone over in the immediately preceding part of the charge as to whether there had been an acceptance or refusal to accept, and whether the patterns had been retained and used, or changes had been made in them by the defendant, and these subjects were carefully and correctly submitted to the jury. In that connection the court used the language complained of, in the first assignment. The court had just previously said, “If you find from the evidence that they (the patterns) were not in full compliance with the contract and specifications, then the plaintiff is not entitled to recover the full amount named in his contract, unless you further find that the defendant company accepted and held the patterns for such length of time and in such manner as thereby to make it so liable.” The learned, judge then said, “ or if the purchaser keeps the property, when sued for the price he may set up the breach of implied warranty and set off his damage, if any, against the plaintiff’s claim, even to the full or equal amount of the price or sum agreed to be paid for the same. Whether the defendant accepted and used, or changed, or undertook to change these patterns, and retained them for an unreasonable time, exercising acts of ownership over them, we leave to you under all the evidence in the case.” It was in this direct connection that the court used the language in question. That there was evidence enough to leave these questions to the jury is beyond all doubt. There was so much of it that it is not at all necessary to recapitulate it. It was tbe alternative of tbe defendant having retained the patterns and used them that the judge was speaking of when he said, “ then if the patterns have any value for any purpose, notwithstanding their unfitness for the use for which they were intended, the plaintiff might recover such value.” Understood in this way there was no error in the charge.

We cannot possibly see any error in the matter contained in the second assignment. The gist of the alleged error is that the court said if the patterns were injured in the course of the transportation the fault was that of the carrying company, and not the fault of either the shipper or the consignee. It was but a statement in the abstract, and as such it was literally correct. There was no question of delivery as between the vendor and vendee at issue, and authorities on that subject have no relevancy.

In the third assignment the only error claimed was the alleged misstatement by the court as to the time the patterns were received and held by the defendant. The evidence shows that the court was correct in saying they were all received about the middle of October. This is strictly correct. The court did not say or intimate that between October 15 and some time in January following there was no notice of any defects by defendant to plaintiff. What was plainly intended when the court spoke of the defendant’s holding without notice from October until January was, without notice, of refusal to accept. The context would be meaningless without this. Now during that period there was no notice of that kind. Prior to October 15, there had been complaints made in some of the letters, of defects in the work, but not of any refusal to accept. On the contrary, letters written by the defendant during that period clearly indicated that the defendant expected to retain the patterns. The letter of September 30, 1890, was certainly to this effect. So were the letters of October 2 and 6. The latter contained this expression, “We will be glad to receive all the patterns as soon as possible, for we will make changes in Res. to conform without suggestion.” There was an abundance of testimony that the defendant did make changes in the patterns, and intended to do so, but there was no testimony that during this period it intended refusing to accept them. These remarks are equally applicable to the twelfth and thirteenth assignments. , The letter of defeádant of January 28,1891, in which it said: “ We fear we cannot use them at all, we must either be paid for the extra cost or we will return the patterns, please advise us what to do in the matter and oblige,” was certainly not a refusal to accept them. At the very best it was but an alternative suggestion that the defendant should be paid the extra cost of making changes or else it would be obliged to return them, and it asked the plaintiff’s advice as to what it should do. Clearly such a letter is not to be regarded as an absolute refusal to accept. We cannot sustain any of these three assignments.

The language complained of in the fourth assignment is predicated of a finding by the jury that the plaintiff did not fully and entirely fulfil the contract on Iris part, but that, notwithstanding such failure, the defendant received and accepted the patterns for an unreasonable length of time before giving notice of such failure, and without offering to return them'in as good condition as they were, then the plaintiff might recover the contract price, less the damage sustained by the failure. We see nothing wrong in this as a legal proposition, and the only question is whether there was evidence upon which such a question could be submitted to the jury. We think there was, and hence there was no error in what the court said.

As to the fifth assignment it is to be observed that the third point of the defendant is too broadly stated. The conclusion that there could be no recovery in this case does not necessarily flow from the premise contained in the first part of the point. The negative answer of the court must be taken in reference to the facts in evidence, and in view of those facts, and the possible finding of the jury in reference to them, the point should not have been affirmed without qualification. There certainly was evidence, quite considerable evidence, that the defendants did receive the patterns during a considerable period of time, that it did make changes in them, that it did retain them and use them for several months, without making a specific offer to return, and these facts if found by the jury would in a most important manner qualify the answer to be made to the defendant’s third point. In view of these considerations we cannot say there was error in the answer. The same remarks are true of the sixth assignment and the ninth, and we therefore cannot sustain any of these assignments.

We could not possibly sustain tbe seventh or tenth assignment as there was plenty of evidence of acts done and letters written, both by Vincent and S chock, as president and bookkeeper, to carry to the jury the question of their authority to write the letters and do the acts in question. What the court said on this subject was entirely correct. The question was fairly left to the jury, and they have found for the plaintiff, on ample testimony, to sustain their finding. These assignments must be dismissed.

There was considerable testimony as to alterations and changes made in the patterns after they were received by the defendant. The plaintiff’s second point requested an instruction that acts of that kind done by the defendant after receipt of the patterns would be an assertion of ownership. We can see no error in this. Surely such action cannot be reconciled with an intent to infuse the patterns and return them. They are the proper and legitimate acts of persons who are owners. They are not the acts of persons who neither are, nor expect tobe, owners. The proposition of the point is abstract, and in that sense it is strictly true. In the concrete it depends upon the evidence which, of course, is for the jury. The eleventh assignment is not sustained.

It does not seem to us that the fourteenth assignment is correctly stated. The testimony complained of was not admitted under objection. Nor was the question to the witness an attempt to prove an offer of compromise. The witness, Foster, was being cross-examined in reference to a conversation which had been introduced by counsel for the appellant. Having answered a number of questions as to what the conversation was, the witness was asked by counsel for the appellee, “ What was the wind-up of your interview? A. Well, the wind-up of our interview was, I made him a proposition or offer to pay him $500 and give him the patterns.” Neither to the question nor to the answer was there any objection. The witness was then asked, “You offered that, that day? A. Yes, sir. Q. What did he say? A. He said lie would not settle that way. Q. Did you at anytime renew that proposition? A. I did. Q. When? A. Subsequently I think by letter, I renewed the proposition.” At this time an objection was first made, “ that anything in the way of a proposition of settlement, that is not accepted by the parties, cannot be evidence in the case.” There was no motion to strike out the testimony already in, and no objection or exception to the admission of that evidence. The witness in answer to the last question simply said that the proposition was renewed on his own responsibility by letter of May 15. But it does not appear that that letter was given in evidence, and, if not, its contents were not before the jury. The oral testimony of the witness as to the conversation, having been voluntarily given by the witness without objection or exception, and no motion made to rule it out, we do not see how we can sustain an assignment of error to its admission. But in any event what was said on this subject was part of a conversation which had been given in evidence by the defendant, and the question was not an offer to prove a compromise, and the part of the answer of the witness which disclosed an offer to pay a sum of money less than the claim, was inconsistent with the claim made by the defendant, that it held the patterns only subject to the order of the plaintiff. It tended to contradict the testimony and the theory of the defendant that it never had accepted the patterns, and had no ownership of them. Being therefore in the nature of the admission of a fact inconsistent with the defense, the question is assimilated to the question raised in Arthur v. James, 28 Pa. 236. There a letter was offered in evidence which contained an unaccepted offer of compromise.. It was objected to on that ground, but we held it was admissible, because although it contained an offer of compromise it also contained admissions of material facts. In the opinion, Lewis, C. J., said: “ In the case before us the letter received in evidence contained distinct admissions of material facts. These facts cannot be excluded because the same letter closes with an offer of a certain sum of money to settle the matter.” In the case now before us, if the objection had been promptly made to the testimony or to the offer, by itself, a different question might have arisen. But as no such objection was made, the part now objected to being part of an entire conversation, it seems to us, cannot be excluded beeauses it discloses an offer to compromise. The fourteenth assignment is not sustained.

Judgment affirmed.