Groetzinger's Sons v. W. L. Kann & Co.

Opinion by Mb,. Justice Green, When the plaintiff wrote to the defendants on February 19, 1891, “ our leather is now thoroughly tanned; will re-ship on Saturday hoping the same will exist as before,” and the defendant, replying thereto, on Feb. 20, 1891, wrote, “ but if [582] your leather is thoroughly tanned now and all right in other respects we would take it as before' in order to have it when trade will be better,” etc., the subject of the negotiation between them must be considered as “ thoroughly tanned leather.” That is what the defendant was willing to buy, and that was what the plaintiffs said was the character of the leather they would ship. The defendant said “ If your leather is thoroughly tanned,” etc. The word “if” made the order conditional and when the plaintiffs shipped leather after that, to the defendant, it was upon the express condition that it should be “ thoroughly tanned.” As we understand the correspondence this condition attached to all shipments to be made subsequently thereto. We have no hesitation in placing the contract within the line of cases illustrated by Phila. & Read. Coal & Iron Company v. Hoffman, 4 Atl. Rep. 848, in which the contract was for the sale and delivery of iron “strictly neutral” and we said, “We are clearly, of opinion that the contract of sale in this case created a warranty as to the quality of the iron.” Holloway v. Jacoby, 120 Pa. 583, is another instance of the same kind. The defendant offered by letter to sell plaintiff a car load of corn. Plaintiff replied by letter saying, “We will give 53c. per bushel for car corn provided it is good salable corn.” Defendant answered: “ We will accept your offer for one car load of corn.” We held that there was a warranty that it was good salable corn. Mr. Justice Paxson, delivering the opinion, said, “The acceptance of the plaintiff’s offer was an agreement to send him a car load of good salable corn, and not a car load of corn generally, without regard to quality, as was assumed by the referee. We are of opinion that there was an implied warranty that the corn was good salable corn. It was this the plaintiff bought and the corn delivered was not of this description.” In Holt v. Pie, 120 Pa. 44Q, the defendant ordered lumber by letter from the plaintiff in the following words, “ Enter the following order of good sound hemlock lumber.” Plaintiff by letter accepted the order and shipped lumber which it was alleged was not good sound hemlock. Our brother Williams in the opinion said, “If when the lumber reached its destination it was not good, sound hemlock such as Holt ordered and Pie agreed to furnish, to that extent performance of the con [583] tract was defective. Holt was not under obligation to accept any quality of lumber except that for which he had contracted, and he had a right to decline to pay for lower grade.” In Pratt v. Paules, 4 Atl. Rep. 751, the plaintiff ordered slate from defendant, saying in his letter, “ Shipment must be strictly No. 1 in quality, no graybacks or scabs.” Defendant replied, “ Can fill your entire order at once.” We held that these communications created an express warranty, saying, “ He (plaintiff) was entitled to receive slate of quality No. 1 free from scabs and graybacks.” , So in the case at bar the plaintiffs said to the defendant, after complaints had been made by the defendant to the plaintiffs that their leather had come back to him from his customers because it was not thoroughly tanned, “ Our leather is now thoroughly tanned. Will re-ship on Saturday hoping the same will exist as before.” And the defendant replying to that letter said, “ But if your leather is thoroughly tanned now and all right in other respects we would take it as before,” etc. These letters make a contract to which both parties assent,' that the leather to be sent must be thoroughly tanned leather, and not merely leather generally. There were special reasons why the defendant was obliged to have that particular quality of leather. He wanted harness leather and he offered to prove that harness leather must be thoroughly tanned and could not be used as such unless it was. He certainly should have been permitted to make such proof. All the offers of testimony by defendant were rejected. We are clearly of opinion they should all have been received so that the case could go to the jury on its merits. The assignments of error are all sustained. Judgment reversed and new venire awarded.