Ulmer v. Ryan

[313] Opinion, Mr. Justice McCollum: The parties to this action were dealers in pork, the appellant at Pottsville, Pa., and the appellees at Dubuque, Iowa. On the 8d of August, 1881, the latter authorized Roloson, a provision broker in Chicago, to “ offer five car loads of fully cured pickled shoulders, average not above twelve pounds, at not below six and one half cents, f. o. b. Dubuque.” On the 9th of August, he informed them that he had sold two cars of sweet-pickled shoulders “at 6.85, f. o. b. Dubuque,” and requested them to send the same to his order at Pottsville. The shoulders were shipped as he directed, and the bill of lading was sent to him. He reported this purchase and consignment to appellant, and indorsed and sent to him the bill of lading accompanied by a draft for r the price. The invoice received by the appellant, before he paid the draft, described the meat as “ sweet-pickled shoulders.” In this transaction, Roloson was the agent of both parties ; he sold for the appellees, and bought for the appellant. When this case was here before, 108 Pa. 382, it was held that the facts above recited constituted a sale of sweet-pickled shoulders deliverable on board the cars at Dubuque, and that there was no implied warranty of quality in it. This is conclusive of all the questions now discussed, except such as arise from appellant’s telegram to Roloson, on the 5th of August. There was no claim on the first trial that the appellant had ordered or was entitled to receive choice sweet-pickled shoulders, and the appellees were not informed of such claim until nearly eight years after the sale. It now appears that on the 5th of August, 1881, the appellant authorized Roloson, by telegram, to “ buy two cars s. p. shoulders if choice seven,” and it is contended that “ seven ” refers to the price, and “ choice ” to the quality, of the pork. Assuming that this is a correct interpretation of the telegram, we are to consider whether the obligation of the vendors was enlarged by it. It distinctly appears in the evidence produced by the appellant that he bought “ sweet-pickled shoulders at 6.85,” and not choice sweet-pickled shoulders at seven; that the sale was at Dubuque,'and completed by delivery on board the cars there, and that he had notice of its terms by his correspondence with Roloson, and the invoice in his possession when he paid the [314] •draft. In the presence of these facts, a telegram which the vendor never saw or heard of until the second trial, and which the appellant and his agent knew did not enter into the s'ale, •cannot be allowed the effect now claimed for it. It was not a part of the contract sued upon, or an element in the decision •of the cause. It was well said by the learned judge of the court below that “ Roloson was the agent of both parties. When he bought, he was acting for the plaintiff; when he sold he was ■acting for the defendants. His evidence shows wherein each •of the parties was responsible for his actions.” The rule that .notice to the agent is notice to the principal has no application to the facts of this case, and neither party can take anything by it. If the appellees had constructive notice of the appellant’s telegram, he had like notice of the instructions Roloson received from them. The judgment is affirmed.