Louis Werner Saw Mill Co. v. Ferree

Opinion by Mb. Justice Dean, The appellants, defendants in the court below, residents of Allegheny county, in March, 1900, contracted with plaintiff, a corporation of the state of Missouri, for the delivery of all the yellow pine lumber needed for the construction of thirty-five houses for the Pittsburg Coal Company. The contract is based on correspondence between the parties. The first letter is from Ferree & Company to the sawmill company dated Pitts-burg, March 10, 1900. It begins by enumerating the kinds, sizes and quantity, points of delivery, and then makes this request: “Please quote us your lowest delivered prices on any or all of the stock, if you could ship at once.” On March 13, three days afterward, the sawmill company replied, quoting prices per M at points of delivery, and saying they “could make shipments with reasonable dispatch.” Ferree & Company on March 15 then replied, that as speedy shipment was much to be desired, they would wait a day or two before placing the whole order and then they might divide it by giving part to other lumber dealers; further, as they would have it shipped direct to the coal company, “ the freight would be paid by that company.” Three short letters then followed between the parties, but they have no bearing on this controversy. On March 20, Ferree & Company mailed an order for the full amount of the lumber at the delivered prices heretofore quoted by the sawmill company, which, on the 22d of the same month was accepted by the sawmill company, who March 31 commenced shipments. There were altogether thirteen cars shipped by the seller and received by the buyer, covering in time a period of about seven weeks. No complaint was made of the quality of the lumber at the time it was re [410] eeived, nor until after it had been used and the bills presented. The amount of the bills was $2,490.24. The purchaser, then alleged, that the lumber was wet, soggy and unfit for use, and that he only accepted it because under his contracts it was too late to purchase and substitute better lumber. He claimed a reduction of about one third the contract price. The court submitted the evidence to the jury who found for the plaintiff the full amount of its claim less about $200, and we have this appeal by the defendant, who assigns for error several of the court’s rulings on evidence, which we shall advert to hereafter, and also the following instruction in the general charge: “You will remember that the defendant must satisfy you that it was bad when it was shipped. It is not for the man that ships the lumber that another man gets and uses, to show that in the first place it was good. It is for the other side to show that it was not and then he answers it. Has the defendant satisfied you that this lumber which he got was bad, green and spoiled when it was shipped, or was it spoiled after it came into the earner’s hands ? If it was the railroad’s fault, then his remedy is there, and not against the man who- ships honest goods in the first place.” This instruction is practically what is complained of by appellant in his sixth, seventh, eighth, ninth and tenth assignments of error. Appellant argues, that under the law as announced in Braddock Glass Co. v. Irwin & Co., 153 Pa. 440, and all our cases where goods are sold to he delivered by the vendor to the vendee at a certain place and are by the fault of the carrier not so delivered, the carrier being the agent of the vendor the latter is responsible for the neglect. The law is sound enough and we do not attempt to modify it. But this contract is in writing to be construed by the court. What within the meaning of the parties, was the undertaking of the vendor? We think the vendee only stipulated for a price delivered at certain points and that is all the vendor undertook to fix. The first letter of Ferree & Company says: “ Please quote us your lowest delivered prices ” at Jacobs Creek, Moon Run, and Whit-sett. It will be noted that the point of shipment was Missouri and the destination near Pittsburg, more than a thousand miles east. The consignee did not probably know and possibly could not ascertain the rate of freight; the shipper could easily know [411] for he made the contract with the railroad; hence, the consignee stipulated for a delivered price, beyond which, no matter what the route or how many connecting roads carried, he would not be bound to pay. Then notice the remark in Ferree & Company’s letter to the sawmill company of March 15, “ as this will be shipped direct to the Coal Trust, freight being paid by them, and stock unloaded by them, it makes no difference if the stock was all shipped in one day.” The freight was not to be prepaid at point of shipment by the consignor but at destination by the consignee, the coal company, who would deduct it or receive a credit on the delivered price already quoted, even if the, amount should greatly reduce the price at the mill which the vendor expected to receive. The vendee was fully protected by his contract against any enhancement of the quoted cost to him. And we think that was all that was intended by the parties by the language, “Please quote us your lowest delivered prices; ” it was to fix a price beyond which no charge could be made against the vendee either by shipper or carrier, no matter what the freight, therefore, a delivery to the railroad company was a delivery to the purchaser. The contract would have been susceptible of a different construction, if it had been a request for the lowest delivery prices, freight prepaid to the points named; but the vendor had nothing to do with the freight, except, to ascertain and use it as a guide in fixing the price of lumber at the mill, taking all the risk of change in schedule prices or mistakes. So that if the lumber was damaged in transit, the party answerable to appellant was his agent for delivery, the railroad company. But concede, as argued by appellant, that the railroad was alone answerable to the sawmill company, what duty was owing by the purchaser, Ferree & Company, to the sawmill company ? Clearly that of prompt notification, that the lumber was damaged. Now it is admitted that these cars as they arrived, during a period of seven weeks were unloaded by the purchaser; that he had full opportunity to inspect every piece of the lumber; nevertheless, he used it all in his contract and made no claim for damage until called upon by the sawmill company to pay; then the time for it to make claim on the carrier was gone; the lumber had been used; had been built into the houses. We hold that even if the railroad, under this contract was the agent of [412] the vendor, still to enable the latter to assert its rights promptly, it was the duty of the purchaser to immediately notify it of the alleged damaged condition of the lumber, and failing to do so before using it, it was too late to set up a claim against the sawmill company; therefore, the instruction did defendant no harm. If a consignee accepts and uses without complaint, goods damaged in transit, except in very rare cases of which this is not one, his remedy against the carrier is gone. But it seems to us, the evidence was in any view of it insufficient to defeat plaintiff’s claim. It was admitted the lumber had been received and used without objection; it was not denied that the quantity and grade were such as called for by the contract; the quality alone was disputed. But we have more than once decided, that where the price of goods is fixed by contract, and the quantity and grade are furnished and accepted Avithout complaint, the buyer must pay the price, even though the quality be inferior. See Fraley v. Bispham, 10 Pa. 320, Whitaker v. Eastwick, 75 Pa. 231, Shisler v. Baxter, 109 Pa. 447, and Whitehall v. Wise, 119 Pa. 484. Therefore, under the undisputed facts the law is clearly with the plaintiff. We do not concur in the argument, that there was a violation of contract by plaintiff in failing to ship promptly. The plaintiff in reply to letter of March 20, says to appellant, “We could make shipments with reasonable dispatch.” The first lot was shipped within ten days thereafter, the whole thirteen cars rapidly followed, and no complaint was made during the interval, of negligence in delivery. We think under the evidence there was a substantial compliance with the contract, in prompt shipment. In the view we take of the law of the contract, appellant’s assignment of error to the court’s rulings on evidence become immaterial. All the assignments of error are overruled and the judgment is affirmed.