Carrara Paint Agency Co. v. Naylor

Opinion by Oklady, J., The defendant in his affidavit of defense clearly and positively avers that the verbal contract made with the plaintiff was for a car load (3,000 gallons) of Carrara paint at the usual and customary market price, and that he relied on the representation of the plaintiff’s agent that the price as stated in the making of the contract and acceptance of the draft embraced in the plaintiff’s claim, was $1.25 per gallon in car load lots f. o. b. Philadelphia; and that after accepting the draft he learned, and now avers, that the usual and customary price for this paint in carload lots, F. O.B. Philadelphia at the time the contract was [332] made, was $1.05, and not $1.25 per gallon and remained at that figure until his affidavit was filed. The contract was entire, and the price as averred in the affidavit was not at so much per gallon, but at the market price per gallon, whatever that might have been. The defendant does not seek to avoid the contract but insists upon its performance on its true terms, hence he is not prejudiced by his payments made on account of the claim after the acceptance of the plaintiff’s draft on him. He gave prompt notice of his defense as soon as he learned that he had been misled by the statement of plaintiff’s agent: Fischer v. Dalmas, 173 Pa. 296 ; Hubbard v. French, 1 Pa. Superior Ct. 218. Moreover, this contest is between the original parties to the contract, and the only question is as to what were its terms. On defendant’s own showing he was liable to pay at the rate of $1.05 per gallon; and his defense relates only to the excessive charge which the plaintiff claims, that which was over and above the usual and customary market rate. Usually buyer and seller are dealing at arm’s length, and there is no confidence between them unless a warranty is demanded and given. “ They use not each others eyes, but each his own. The seller is allowed to express freely his opinion of the value of his wares; the buyer is at equal liberty to answer that it is naught. If there is an intentional concealment or suppression by either party of material facts which he is bound to communicate to the other, there is fraud ; but neither party is bound to communicate that which is equally accessible to both. The state of the markets, the present and prospective value of a particular commodity, are among the things which are alike open to both buyer and seller, and neither is bound to instruct the other ” is the rule laid down in Rockafellow v. Baker, 41 Pa. 319. However, that was a case where a recission of an executed contract was contended for, and the defense related to the quality or value of the article. Under the averments of this affidavit it must be held that “ the usual and customary market price ” for the paint at the time the contract was made with the defendant was the price per gallon at which the plaintiff was then selling the article to other dealers ; which per gallon price was a substantive fact and was well known to the plaintiff; if the agent represented that “ the usual and customary market price ” was $1.25, whilst in fact it was but [333] $1.05 per gallon, it was a false representation of a fact, intentionally made for the purpose of defrauding the defendant; which it is averred, was the inducement to the making of the contract: Smith, Kline & French Co. v. O. Smith, 166 Pa. 563; Goodwin v. Schott, 159 Pa. 552. We are to assume that the facts stated in the affidavit are true; if they are so, the defense is sufficiently set out to prevent a summary judgment, and put the plaintiff to the proof of his claim. The judgment is rev ersed and a procedendo awarded.