Moulton v. O'Bryan , 17 Pa. Super. 593 ( 1901 )

Opinion by

Beaver, J.,

It seems to have been assumed throughout the entire charge of the court below that the defendant ordered directly from the plaintiff a carload of “ fancy seedling ” oranges. Had this been the fact, the instructions in regard to the difference between an executed and an executory contract for the sale of goods would have been perfectly correct. On the contrary, however, the defendant ordered through J. F. Edwards, Los Angeles, California, a carload of “ fancy seedling ” oranges. He had no knowledge as to the person from whom they were purchased, nor had the vendors, so far as appears by the evidence, any knowledge of him, except what they acquired through Edwards. Edwards was the defendant’s agent.' As to this all the testimony agrees. He says : “I purchased a car of oranges from the plaintiffs for the defendant, on telegraphic instructions from the defendant for me to do so. I was at the time acting as broker for the defendant.” The defendant testifies : “ Q. In the telegram that' you sent Edwards, ordering this car of oranges at 11.25 a box, did you made any specifications as to the quality ? A. ‘ Fancy seedlings,’ yes, sir. Q. That was the only requirement that you expressed in your telegram, was it ? A. Yes, sir. Q. And at that time all you knew about what a ‘ fancy seedling ’ was at that time of the year was what had been told you by the broker, Edwards; is that correct? A. Yes, sir.” The plaintiff testifies: “ We sold the oranges to the defendant through a broker, named J. F. Edwards, as the broker advised us that he had received a telegram from Mr. O’Bryan to purchase the carload for him. I do not know whether the broker was authorized to accept the oranges here or not. We shipped the oranges to the defendant, O’Bryan, subject to inspection upon arrival, but not subject to acceptance, as the oranges were bought by broker Edwards for O’Bryan.” It is perfectly clear, therefore, and is not, in fact, denied that Edwards was the agent of the defendant. He inspected the fruit which was then being shipped by the plaintiff as “ fancy seedlings.” He understood, as appears from his testimony, what this particular brand of oranges was, and his knowledge upon that subject, so far as the plaintiffs were concerned, was the knowledge of the defendant. The oranges were not of a high color and were sour, and for this reason were rejected by the defendant, when they reached their destination. Defendant, having refused to answer the plaintiffs’ telegrams, and learning from Edwards that he demanded a reduction of twenty-five cents per box, and would not receive them without such a reduction, the plaintiffs directed the oranges to be sold by a commission house on account of the defendant, and claimed the difference between the price agreed to be paid and that realized at the sale.

It would appear from the evidence that the term “ fancy seedling ” has one meaning in California and a different meaning in Pittsburg. In California the term means the best quality of seedling oranges at any time during the season. In Pittsburg it would seem to mean a sound, smooth, high colored sweet orange, but it is admitted by other experienced dealers that it is impossible to secure a “ fancy seedling ” in December, for the reason that oranges of that class can be secured only when the season is farther advanced and the fruit has attained greater maturity than it ever reaches in December. This the defendant was bound to know, whether he be bound by the knowledge of Edwards in regard to the character of the fruit shipped or not. It was, therefore, error in the court to say: “ Now, unless the defendant knew that a fancy seedling orange, palatable and sweet, could not be obtained at that time, I take it that he was entitled to have what was known in the market generally as a “ fancy seedling ” orange, and, if they could not furnish that kind, then it was their duty to so notify him. or not ship at all. If, however, they shipped oranges that were not up to that grade, then they must bear the loss.” It is evident from the testimony of Edwards, the defendant’s agent, that he well understood that a “fancyseedling ” in December,“would be bright, clean but not sweet nor as well colored as the fancy seedling oranges would be later.” Knowing this, the agent purchased for the defendant the carload of oranges which was shipped to him. In this view of the case, the portions of the charge embraced in the second and fourth specifications of error were not strictly correct, and these assignments of error are sustained.

The sixth, seventh, eighth, ninth, tenth and eleventh specifications relate to the correspondence between the defendant and his agent, Edwards. There is no allegation that any part of this correspondence was ever submitted to the plaintiffs or that they had any knowlege of the contents thereof, except the information, after the fruit had been received by the defendant at Pittsburg, that he was dissatisfied with it and demanded a reduction of twenty-five cents per box. This testimony was clearly incompetent, and the offers embodying it should have been rejected, — that portion of it leading up to the sale, because it consisted of communications from the defendant to his own agent not communicated to the plaintiffs, and that which was subsequent to the receipt of the consignment in Pittsburg for the same reason and for the additional one that it would be nothing more than the declarations of the defendant in his own favor after the transaction was complete. These specifications of error are, therefore, also sustained.

Judgment reversed and a new venire awarded.

W. W. Porter, J., concurs in the judgment.