Thomas Roberts & Co. v. Andrews & Co.

Opinion by W. D. Porter, J., The statement in this action alleged that the defendants, through an authorized agent, entered into a contract for the sale and delivery, at Philadelphia, to the plaintiffs of “Lot about one thousand (1,000) cases E. J. Peas, ‘ Andrews’ Brand,’ at 67J cents per dozen;” that on June 23, 1899, the defendants finally and positively declined to comply with his contract ; that the value of said 1,000 cases of canned peas at the contract price of sixty-seven and one half cents per dozen was ”$1,350, and the market or selling price of said goods was, at the time of the refusal of the defendants to comply with his contract, namely, on June 23, 1899, $1,760, so that by reason of the failure of the defendants to perform his contract he became indebted to the plaintiffs in the sum of $410. The affidavit of defense admitted the making of the contract and the breach thereof by the defendants, but denied liability for the amount claimed by plaintiffs upon two grounds, viz: (1) That the plaintiffs were notified on June. 16,1899, that the defendants refused to deliver the goods under the contract; that on June 15, 1899, the goods were not worth more than sixty-seven and one half cents per [310] dozen, and that on June 28, 1899, the same, or similar peas, were not worth the sum of $1,760, as alleged by plaintiffs; (2) that the contract did not require the defendants to deliver the full number of 1,000 cases of canned peas, as the word “ about ” indicated an uncertainty as to quantity, and the defendants were only called upon to deliver such peas as they then had on hand, which did not exceed 700 cases. The first ground of defense alleged is expressed in language which is vague, uncertain and evasive. The material allegation of the statement was that at the time of the breach, the market or selling price of the goods was $410 greater than the contract price. It is true the date of the breach is fixed as of June 23, 1899, but the material fact was the difference between the contract price and the market value at the time the breach occurred. The allegation of the affidavit of defense that the breach occurred on June 16, 1899, is, therefore, a denial of only a part of this branch of the plaintiffs’ statement. The assertion tha.t the price had not advanced on June 15, upon which day neither of the parties assert the breach of contract to have been complete, is immaterial. ’ The defendants were called upon to deny that the market value of the goods was greater than the contract price at the time they refused to perform his contract. The assertion that the goods were not worth $1,760 on June 23, is insufficient, in that it does not state whether they were worth more or less than that amount, and if it be assumed that the language fairly implies an assertion that they were worth less than the amount stated, it was incumbent upon the defendants to say how much less. The allegation of the plaintiffs that the value which they placed upon the goods at the time of the breach was the market or selling price, required something” more than the mere assertion of the opinion of the defendants that the goods “ were not worth ” that amount. While market price and market value do not necessarily mean the same thing, yet, where the article is such as is regularly for sale in the market. the one generally determines the other: Theiss v. Weiss, 166 Pa. 9. The second ground of defense alleged is equally without merit. Had the contract contained a reference to any independent circumstance which identified the lot of goods intended to pass under the sale, or had the affidavit of defense [311] set forth facts sufficient to attach and limit the operation of the contract to a specific lot of goods, such as an entire lot deposited in á certain warehouse, or all that might be manufactured by the vendor at a certain establishment, or the entire cargo of a certain vessel, then the use of the word “ about ” in connection with the number of cases of goods upon which the contract of sale was to operate, would have given to that clause of the contract the effect of an estimate of the probable amount in the specific lot to which the contract applied: McConnell v. Murphy, L. R. 5 P. C. 203; Brawley v. United States, 96 U. S. 168. We find nothing in the contract, nor the affidavit, with reference to any independent circumstance which limited the source from which these goods were to come. The vendor might have manufactured them himself, or purchased them in the market; he simply undertook to deliver about 1,000 cases of goods of a certain quality. The addition of the qualifying word “ about ” in such a contract is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, weight or measure: Brawley v. United States, supra; Bourne v. Seymour, 16 C. B. 336; Cross v. Elgin, 2 B. & Ad. 106; Norrington v. Wright, 115 U. S. 188. In the entry of judgment by the court below there was no error. Judgment affirmed.