Lipper Manufacturing Co. v. Morris & Co.

Opinion by Kephart, J., The contract in this case was made up from an offer by the appellee to furnish 200 rolls of blue webbing to be made in seventy-two yard rolls, price to be $12.00 per gross of 144 yards, and an acceptance of this offer in its exact terms, delivery to be made in four weeks. The article was to be manufactured specially for the defendant. Upon receipt of the first shipment of a portion of the material and invoices therefor, appellant countermanded the order by telegram, as follows: “Do not complete balance of order. Misunderstanding as to price.” The appellee declined to obey the instructions of the telegram, completed the balance of the order, shipped it to the appellant at Kansas City, who accepted and placed it in their warehouse. The delivery was after the time limited in the contract. The goods were not ret^m^U^B, was any complaint made of the time of th§*0OTwry"until the day of trial. This suit was for the contract price. The appellant insists that the proper measure of damages to be applied was the difference between the market value and the contract price. From the facts as here presented, had the appellee done as ordered, there is no doubt but what the measure of damages would have been the difference between the [615] contract price and the cost of manufacture, less any additional loss which the vendor or manufacturer may have suffered by reason of the repudiation of the contract: Gallagher v. Whitney, 147 Pa. 184. After the goods had been delivered to the common carrier, and upon their arrival at Kansas City, if the purchaser had declined to receive them or had immediately returned them, the measure of damages would have been as held in Unexcelled Fire Works Co. v. Polites, 130 Pa. 536. The appellee having accepted and received the goods, exercising acts of ownership over them, retaining their possession for a long period of time, raising no complaint as to the time of delivery, he cannot keep both the goods and the money to be paid for them. The contract was entirely executed between the parties; all that remained was the payment of the contract price. If time had been the essence of the contract, it was the duty of the vendee to reject the goods when they arrived. This acceptance and retention of possession was properly treated by the trial court as a waiver of this requirement of the contract. The letters from the appellant indicate that the only trouble was the question of price. Moreover, it is in evidence, though not material to the determination of the case, that had the appellee ceased manufacturing the goods at the time the countermanding order was given, the loss to the defendant would have been greater than to proceed with their manufacture. The major portion of the expense in manufacturing the completed article had been incurred; the material in a half manufactured condition would have been of no value to the appellee and an utter loss. The goods in their manufactured condition would still be of value to this defendant. Concerning the question as to the submission to the jury the question of the credibility of the witnesses, in Reel v. Elder, 62 Pa. 308, Sharswood, J., says: “However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province [616] of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.” This is the general rule, but where the questions involved depend upon writings and the only purpose of the oral testimony is to complete the matters called for in the writings, shipment, receipt and acceptance, where the adverse party admits its completion, the credibility of the plaintiff’s witnesses to support these facts is then withdrawn from the jury. Appellant admitted the acceptance and possession of the goods. The proper interpretation of the written contract was for the court. The appellant asserts that he understood the word “gross” to mean “dozen” and on that basis made the contract. Clearly this was no defense and was properly rejected by the trial court. Assignments of error are overruled and the judgment affirmed at the cost of the appellant.