Pierce v. Allegheny Bessemer Steel Co.

Opinion by Mr. Justice Green, As it seems to us, the controlling question in this case is whether there was an acceptance or rejection of the iron by the defendant. The defendant’s order to Nimiek & Co. was entered on or before October 18, 1890, as appears by letter of that date from Nimiek & Co. to defendant. The deliveries under the [64] order were made, October 25, 2 cars; October 27, 2 cars; October 29, 1 car; November 5, 4 cars; November 6, 2 cars, in all 340 tons. The entire delivery was completed at the yard of the defendant company on November 6, 1890. By the terms of the order all the iron delivered in October was to be paid for, one half on November 10, and the other half on November 25. On November 10, the defendant, then being in receipt of all the iron, sent a voucher to Nimick & Co., which embraced all the iron delivered under the order up to that date, deducted the freight which had been paid on all the iron and paid the one half ’ of the price of the iron -which was due on November 10. No notice was given by the defendant that any of the iron was rejected, for any reason whatever, nor that it was held subject to the order of Nimick & Co. When the voucher was given on November 25, following, credit was claimed for the amount paid at the former settlement, by deducting the number of tons, 340, from an aggregate of 1167 tons which had been settled for by the previous voucher, and crediting Nimick & Co. with only the price of the whole 1167 tons less the 340 tons. All of this appears in a settlement sent by Nimick & Co. to the plaintiffs on November 25, 1890. In this paper no allusion is made to the 340 tons, except as being “ tons over limit in sulphur and held subject to our order.” There was no statement showing what the analyses were as to sulphur, or that any such tests had been made, and the only communication that was made to the plaintiffs was from Nimick & Co. in the manner stated. No information was given as to what had been done with the iron, and nothing was said as to whether it had been rejected. Charles H. Scott, the bookkeeper of Nimick & Co., who conducted the transaction and attended to the books and correspondence of the firm, and was the principal witness for the defendant, after having testified that the terms of sale required the payment of one half the price of the iron on the 10 th and the other half on the 25th of the month following the delivery, was asked on cross-examination, “ Q. And according to these vouchers and according to these payments, the defendant in this case paid the first payment, the one half of the cost of this iron in, controversy on the 10th of October (November)? A. Yes, sir. Q. Without any objection as to the quality of the iron. And was there a word said by them, any complaint [65] made by them as to the quality of that iron until the 25th of November? A. I never heard of any.” The witness further testified that he did not receive the analysis till some time after November 25, though he asked for it several times, but the first correspondence in regard to it did not take place till March 4, 1891, and that was a letter from Nimick & Co. to plaintiffs, in which they reported an offer of $15.00 per ton for the iron from Carnegie & Co. The other testimony showed that when the iron was received by the defendant it was sampled and analyzed, and was then unloaded on the defendant’s property. They alleged that it was held subsequently to that subject to the order of Nimick & Co. The defendant does not appear to have sent any word or notice of any kind to the plaintiffs in regard to the iron, and their communications were only with Nimick & Co. It was not until March 12, following, that plaintiffs received the analysis of the iron. On the other hand the defendant contends and gave evidence to prove that he had the iron analyzed as soon as it arrived, and when the report of the analysis came in they unloaded the iron and piled it up by itself, and thereafter they held it subject to the order of Nimick & Co. It will be seen at once that a most serious question as to the acceptance or rejection of the iron by the defendant was raised. The court submitted this question to the jury who found for the plaintiffs, and, therefore, must necessarily have found that the iron was accepted. Of course, if such was the fact the liability of the defendant followed. In reviewing the action of the court on this subject and the comments contained in the charge, we do not discover any error. After explaining the subject of delivery in the aspects developed by the testimony, and the right of the defendant to reject the iron if it was not up to the standard of the contract, and the effect of some correspondence in regard to a subsequent sale of it, and of the action of the plaintiffs in relation thereto, the court said to tbe jury, “ I say I leave to you to determine whether it was a delivery and an acceptance or a rejection. The lot of iron came from Sharpsville in Mercer county, and was shipped according to agreement, and was in the cars. I wouldn’t say that they couldn’t analyze it on the cars, or couldn’t analyze it off the cars, and hold it in the yards, because it is a bulky article, and the cars might be demanded elsewhere. I leave that question [66] as to whether or not it was a delivery and acceptance, and whether after everything was settled properly and reasonably between them, that they long afterwards disputed it.” This was really the leading and most important question in the cause. It was also a controlling question, because if there was a delivery and acceptance the defendant’s liability resulted as a matter of law. A considerable part of the testimony related to the chemical analyses of the iron, but the testimony on that subject was very conflicting, and was not at all satisfactory. The variations in the results reached were very confusing, and as this whole matter related to the right of the defendant to reject the iron, rather than to the question whether they did reject it in fact, the subject was of minor importance as contrasted with the other question whether they did actually reject or accept this iron. We think there was ample testimony to sustain a verdict for the plaintiffs on this subject, and hence we do not feel disposed to question its propriety, or to resist the ' logical consequence of the finding. It is a question of fact, and the verdict disposes of it. While there are some things in the charge which are fairly subject to criticism we do not think they are of sufficient consequence to affect the result. The assignments of error are not sustained. Judgment affirmed.