Hamilton v. Kirby

Opinion by Mb. Justice Mitchell, The affidavit set forth two defenses, first, that the purchase of poplar wood with the bark on, as a substitute for peeled poplar, is contrary to the usage of the trade, and secondly, that the [469] sum paid by the plaintiffs for the substitute was above the market price. Where the seller fails to deliver an article contracted for, the purchaser has a right to go into the market and supply himself on the best terms he can, and then to look to his defaulting vendor to make up any loss from the breach of the contract. And if the exact article cannot be obtained with reasonable effort the purchaser may take the best substitute within reach. But what is the best substitute is a question of fact which if disputed must go to a jury; and on this question, ordinarily, the general usage of the business, if there is such a usage, is controlling evidence. The affidavit of defense avers that the substitution of poplar with the bark on for peeled poplar was “ entirely contrary ” to the usage of the trade. That raised a question for the jury. Secondly, the purchaser in procuring the substitute cannot charge his vendor for more than a loss which was not reasonably avoidable. Therefore he must buy the substitute on the best terms obtainable, and that means prima facie, at the market price. The price paid by the plaintiffs being disputed by the affidavit, raised another question for the jury. The affidavit was not required to state the defendants’ version of the market price. Where the defense is pro tanto only, the affidavit must state the exact extent to which it goes, so as to give the plaintiff the opportunity, if he desires, of accepting the defendant’s version and taking judgment for the amount admitted: Cosgrave v. Hammill, 173 Pa. 207. But in this case the defense set up goes to the entire claim, not only upon the questions already noticed but also on breach of contract in the first instance by plaintiffs in the measurement of wood delivered, and other matters not necessary to discuss now. Judgment affirmed.