United Fruit Co. v. Bisese , 25 Pa. Super. 170 ( 1904 )

Opinion by

Smith, J.,

The contract, the performance tendered by the plaintiff, and the ground on which the defendants refused to accept this tender, are fully exhibited in written communications between the parties. The construction of these is for the court.

First is an order from the defendants to the plaintiff, dated December 6, 1902, for 150 bunches of bananas. The plaintiff shipped 200 bunches, and sent the defendants an invoice of this shipment, dated December 8, followed by a letter, dated December 9, stating that 200 had been shipped, instead of 150. December 12 the defendants wrote to the plaintiff that the bananas had arrived on the preceding day (Thursda}*), but were frozen; that they were told that the goods had left Philadelphia on Wednesday, and had replied that that could not be, as they had the bill of them on Wednesday. The defendants refused to receive the bananas; the plaintiff, being notified of this by the railroad company, December 12, by telephone, refused to direct any other disposition of them, and the company, unable to dispose of them, finally threw them out, spoiled. December 12 the plaintiff wrote to the defendants, giving details relating to the shipment, and stating that the fruit had been sold delivered in Philadelphia. January 28, 1903, the plaintiff sent the defendants a statement of account, and asked immediate attention to it. January 29 the defendants replied that the bill had been refused, that they did not intend to pay it, and that the plaintiff could “ fight it out with the railroad company.” January 30 the plaintiff wrote that the fruit had been delivered to the railroad company in good condition, and that any differences with the company were to be fought out by the defendants. February 4 the defendants answered that they had accepted nothing, and had no claim against the railroad company. February 5 and March 21 the plaintiff again wrote requesting payment, but no response appears to have been made to either letter.

While it does not appear when the plaintiff’s letter of December 9 was received, the defendants, on the arrival of the fruit, had the invoice showing the shipment of 200 bunches ; and Salvatore Bísese, one of the defendants, testified that “when the bill arrived there were 200 bunches instead of 150 bunches, so we growled a little bit.” No “ growl,” however, relating to the excess in the quantity shipped, ever reached the plaintiff, though it clearly appears that the excess was known to the defendants when the fruit arrived. Throughout the correspondence no hint was given bjr the defendants that they declined to accept because of the excess in quantity, and that this excess was not deemed a ground of objection is further indicated by a telegram from the defendants to the plaintiff, on the day on which the bananas were shipped, ordering 250 bunches more. It fully appears that the only reason, communicated to the plaintiff, for refusing acceptance, was that the fruit was frozen on its arrival.

Under the general rule of law the delivery of the fruit to the carrier was constructively a delivery to the defendants, and in the absence of any legal defense the latter were liable for its value. If they had any defense it was their duty to make it known, promptly and fully, and with no concealment or omission by which the consignor might be misled. The plaintiff had a right to know the precise grounds on which its right to payment was challenged, that such action might be taken as in its judgment the situation required. The case falls clearly within the class in which the allegation of any specific ground of objection, of defense, or of excuse for the nonperformance of a contract operates as a waiver of all others, and as an estoppel, by the act of the party, agaihst setting up any other ground.: Messmore v. Morrison, 172 Pa. 300; Western, etc., Pipe Lines v. Home Ins. Co., 145 Pa. 346; Niagara Fire Ins. Co. v. Miller, 120 Pa. 504. Here the defendants rested their refusal to accept and pay for the fruit shipped to them, so far as it was communicated to the plaintiff, solely on the ground that it had been frozen; there was no intimation, on their part, of an unwillingness to accept the full quantity shipped. The plaintiff’s action in the premises was necessarily based on the ground of refusal thus given by the defendants. Whether a more advantageous course might have been pursued, had notice been given that the defendants refused to accept the quantity shipped, is not material; the plaintiff had a right to the opportunity, and was deprived of it by the act of the defendants in confining the ground of refusal to the condition of the fruit. The letters of the defendants to the plaintiff, written with full knowledge that 200 bunches had been shipped, must be construed as a refusal to accept on the ground that the fruit was frozen and as a waiver of the right to refuse acceptance on the ground of excess in quantity.

From the evidence the defense set up by the defendants is plainly untenable. If the bananas were delivered to the carrier in good merchantable condition, packed or otherwise protected in the manner customary in the trade, the plaintiff’s responsibility was then ended, and that of the carrier, or of the defendants, began. The defendants can look only to the carrier for compensation for loss arising from negligence on the part of the latter; and whether there was loss due to such negligence was a question with which the plaintiff was not concerned.

Judgment reversed and venire de novo awarded.