Field v. Schuster , 26 Pa. Super. 82 ( 1904 )

Opinion by

Henderson, J.,

The principal questions .of fact developed at the trial of this case were:

First. Whether the defendant accepted the tobacco before delivery; and ■

Secondly. Whether the plaintiff delivered it at the place and in the condition'provided for in’the contract.

Evidence was offered by the plaintiff tending to show that the defendant’s agent, who acted in the purchase of the tobacco, came to the plaintiff’s premises where the tobacco was stored and, after such inspection of it as.he cared to make, accepted it and directed that it be weighed and delivered on the cars at the station. Defendant’s agent denied that he accepted the tobacco unconditionally and alleged that he only agreed to take it if it were delivered at the cars in the condition, provided for in the contract. That the defendant’s agent went to the plaintiff’s premises for the purpose of inspecting the tobacco and ascertaining whether it was in the condition called for in the agreement is admitted-. The agent testified that some of the bundles contained damaged tobacco and that he could not accept it unless it was delivered in the condition agreed upon.

The plaintiff claimed that after some discussion as to condition the agent accepted it and directed that it be delivered at the station. • . • .

The court submitted the question of acceptance to the jury with proper instructions. There can be no doubt of the liability of the defendant for the tobacco if accepted by him whether it was inspected or not, in the absence of any concealment or fraud- on the part of the plaintiff. The contract of sale does not name the place at which the inspection of the tobacco was to be made. In the absence of any action of the purchaser indicating.a different place the place of delivery would be that at which the inspection would properly be made. In the present case-, however, the parties seem to have understood that the inspection was to be made at the tobacco house and that would seem to have been the most convenient place for that purpose inasmuch as the delivery at the station was to be made on the cars. Very clearly, therefore, if the property was inspected by the defendant’s agent and the plaintiff directed to deliver it on the cars at the station and such delivery was thereafter made, defendant’s liability was fixed. Performance according to the contract will be presumed where acceptance is made after an inspection or an opportunity for inspection. The learned judge was not in error, therefore, in his answers to the defendant’s first and second points.

The defendant was also bound, if the plaintiff delivered the tobacco on the cars in the condition stipulated for in the contract. The sale was of a specific lot of tobacco and compliance with the terms of the contract taking into consideration the character of the merchandise, was the measure of the plaintiff’s duty. That the tobacco was weighed and delivered on the cars at the place provided for in the contract is not disputed. Much evidence was introduced in regard to its condition. The instruction of the cóurt to the jury on the obligation of the plaintiff to deliver the tobacco in the condition agreed upon and of the exemption of the defendant from liability unless such delivery was made, was correct and clear and could not have been misunderstood.

The portion of the charge contained in the third assignment of error should be read in the light of the context. The subject under consideration was the alleged acceptance of the tobacco by the agent of the defendant. The jury was instructed that if the agent, after having come for that purpose, examined the tobacco and accepted it, the defendant would not afterward be heard in his refusal to pay therefor. In that connection the court instructed the jury that if the defendant had an opportunity to examine the tobacco when about to accept it, it was his duty so to do, and if he omitted to exercise his privilege in that respect he would not afterward be permitted to object that his acceptance was without examination. In the connection in which the excerpt from the charge was used it was a correct statement of the law —Fogel v. Brubaker, 122 Pa. 7— and had not the effect to make the defendant liable for the price of the tobacco regardless of its condition; nor was it an instruction that the defendant was bound to examine the tobacco at the tobacco house except as bearing upon the question of the acceptance of the tobacco at the time of the examination.

That portion of the charge contained in the fourth assignment of error, when read in its connection, does not sustain the interpretation placed upon it by the learned counsel for the appellant. The instruction was direct and positive that the plaintiff was bound by the terms of his contract; that if the tobacco was not merchantable or if the defendant did not accept it he could not be held liable for its payment. An amplification of the charge would not have made this direction clearer.

We are not persuaded that the court erred in rejecting the offer made in the fifth assignment. The evident purpose of the offer was to introduce the defendant’s case in advance by a cross-examination of the plaintiff. The evidence presented by the plaintiff at that stage of the case did not authorize the introduction of the evidence contained in the offer. The fact that an additional reason for this objection was given by the court is not ground for reversal.

The principal objection of the defendant to the condition of the tobacco was that it was “ damp ” or “ wet,” that condition being caused by the use of water in the process of handling the tobacco by reason of which it was liable to rot and was not merchantable. It was responsive to this contention to show that soon after the time when the tobacco was delivered at the cars it was sorted and that there was a very small quantity of “ wet'” tobacco found therein. It is a misapprehension of the action of the court to assume that the defendant was not permitted to show the condition of the tobacco at the time it was sorted. The rejection of the offer to cross-examine the plaintiff upon that subject did not preclude the defendant from introducing testimony upon that point.

The court was not in error in striking out the evidence referred to in the seventh assignment. It related to overtures of compromise and an attempt to settle after the delivery of the tobacco in the cars and would not enable the jury to determine what the condition of the tobacco was or whether there had been an acceptance at the tobacco house by the defendant.

The witness Burgh testified that from his knowledge of tobacco, the examination he had made of other crops and the experience he had had he thought the plaintiff’s tobacco was “not quite” merchantable. His testimony at a former trial of the same case was clearly competent for the purpose of impeachment as his testimony at that trial indicated that he had not a clear view as to what was merchantable tobacco.

On either of the grounds for recovery relied upon by the- plaintiff the instruction of the court on the measure of damages was'correct. The sale was of specific property, inspected and accepted by the defendant, as the plaintiff claimed, or if not accepted, delivered in cars in accordance with the terms of the contract. From the plaintiff’s standpoint there was a complete performance of the contract and if entitled to recover anything he was entitled to recover the contract price of the goods sold. If he failed to make out a case to the satisfaction of the jury on either of the grounds relied upon he was not entitled to recover at all under the evidence. The jury having found in his favor the verdict was properly for the consideration named in the agreement. The cases cited by the appellant related to executory contracts for the sale of goods not specific and are not applicable to the case as presented by the plaintiff.

We do not consider the error of the court with reference to the time of delivery of the first two loads of tobacco prejudicial to the defendant. The plaintiff proceeded immediately to load part of the tobacco on wagons and that part was delivered a few days thereafter. It does not appear that the inadvertent misstatement of the evidence on this point did the defendant any harm, and if the matter was considered important the attention of the court should have been called to it at the conclu-: sion of the charge.

The court was substantially correct in referring to the testi-mony of the witness Spencer which is the eleventh assignment as will appear from portions of his testimony':

Q. State whether or not you were called upon at any time to do anything with this Field crop of tobacco that has been sworn to. A. Yes. Q. What was it? A. I was employed to store it in the ear. ... Q. You say you were employed to load this car? A. Yes. Q. For whom were you working? A. Mr. Allen.

The defendant having offered evidence tending to show that the tobacco was improperly handled when it was taken down because of the use of water to dampen it, the evidence was competent in rebuttal to show that it was a common practice to so treat tobacco and that it was not prejudicial to its quality or condition.

The evidence as set forth in the thirteenth assignment of error was not admissible. The contract was for merchantable tobacco. The sale was not made by sample and there was no warranty of the quality beyond that implied in the contract. It was not alleged that all “ filler ” is damaged tobacco and the plaintiff was not bound by his contract for the limited percentage of “filler leaf.”

We are not persuaded that the charge of the court as a whole is so inadequate or partial as to warrant the criticism pronounced upon it by the learned counsel in their argument. It directed the attention of the jury in clear language to the controverted points in the case, left them free to dispose of the case under the evidence and clearly stated the legal principles controlling the case. We are of the opinion that the assignments of error should be overruled and the judgement affirmed.