Warren v. Philadelphia Coal Co. , 1877 Pa. LEXIS 97 ( 1877 )

Mr. Justice Woodward

delivered the opinion of the court, March 30th 1877.

No rule is more firmly imbedded in our jurisprudence than that which governs the rights of vendors and purchasers in an ordinary contract of sale of personal property. In such a contract the vendor is subject to no implication of a warranty of the quality of tile article sold. The doctrine of the common law, as it was settled in Chandelor v. Lopus, Cro. Jac. 4, has been constantly and uniformly applied. In the language of Mr. Justice Duncan in Jackson v. Wetherill, 7 S. & R. 480, “ with regard to the goodness of wares purchased, the vendor is not bound to answer unless he expressly warrant them to be sound and good, or there has been a fraudulent representation — an affirmation of the quality known to the vendor to be false.” - Chief Justice Gibson and Mr. Justice Kennedy dissented even from the judgment in Borrekins v. Bevan, 3 Rawle 23, which decided that in all sales of goods a warranty was to be implied that the article delivered should correspond in specie with the commodity sold. That case introduced a distinction between quality and essential character which was a novelty at the time, but has since been generally maintained. In the dissenting opinion the Chief Justice said: “I prefer the rule of the common law to the modern approximations towards that of the civil law; not only because it is the rule of the common law, but because it seems to be more convenient and just. * * * The object of the rule is to encourage trade by preventing actions against all in-turn through whose hands the article has passed in a course of dealing. The doctrine of Borrekins v. Bevan has never been extended. The common-law rule has been enforced so lately as in the reported case of Whitaker v. Eastwick, 25 P. F. Smith 229, and in the case of Boyd v. Wilson (ante, p. 319), decided at the present term.

On the grounds thus stated, the court below was justified in rejecting the offers of the defendants specified in the third and fourth assignments of error. The purpose was to show, first, that the character of the coal shipped to. them injured their business, and secondly, that it was defective and not adapted for the uses to which it was designed to. be applied. The evidence was offered not in view of the special circumstances of the case as they were alleged to exist, but upon the assumption of a legal implication of a warranty arising from a single fact of the sale itself. Coal had previously been received from the plaintiffs. Under a general contract for a fresh supply, the defendants-would be required to accept from the plaintiffs the current product of their mines, and for that product the plaintiffs, acting in good faith and in the accustomed course of their business, would be entitled to be paid.

But there is more in this case than the questions raised by the third and fourth assignments. Nothing in the common-law rule on this subject stands in the way of a contract stipulation as to quality between a vendor and a purchaser. And it was insisted on the trial that such a stipulation had been entered into by these parties. When the offers specified in the fifth and seventh assignments were made, Parker IT. Warren had testified that Spofford, the agent of the plaintiffs, had asked him to take the cargo of coal, the price of which is the subject of this controversy. “ I inquired particularly,” the witness had said, “ of the quality of this coal. He assured me it was of the same quality I had been buying. I told him if so, to put it on the wharf at $4 per ton, but if it was not good coal I would not have it.” In view of this testimony, the defendants proposed “to show that this cargo of coal was placed on a large pile of coal, a great portion of which was Philadelphia Coal Company’s coal, sold to the defendants by the agent of the plaintiffs, and this cargo was not as good.” It was proposed also to ask Mr. Spofford, on cross-examination, this question: “Had not Mr. Warren on several occasions, and repeatedly, told you that if you did not send him good coal, he would not pay for it, and you must take it away ?” Both these offers of testimony were rejected. They ought to have been received. The defendants alleged the existence of a contract that defined their rights, and there was evidence from which the jury might have inferred an agreement on the part of the plaintiffs to be answerable for the quality of the coal they were to deliver. To constitute an express warranty no special form of words is requisite. The word warrant, though it is the one generally used, is not so technical that it may not be supplied by others. It is enough if the words used are not dubious or equivocal, and if it appears from the whole evidence that the affirmant intended to warrant, and did not express a mere matter of judgment or opinion: Jackson v. Wetherill, supra. A contract to deliver goods of a quality, as well as of a species, defined and fixed, is as capable of enforcement as any other contract.

So much of Mr. Montgomery’s deposition as contained a description founded on his personal knowledge of the coal. delivered to the defendants should have been admitted. The evidence that his own coal had been received from the plaintiffs was scarcely distinct enough to warrant a characterization of that of the defendants by a comparison of his with theirs. It does not appear clearly from the record how the transcript from the books of the agents of the plaintiffs became part of the evidence in the cause after the books themselves had been excluded. It was legitimately before the jury if, as the plaintiffs assert, it was produced and offered by the defendants. If there was error it can be avoided in a future .trial. The second assignment was withdrawn on the argument. The eighth assignment refers to a matter of mere detail, which for any purpose to be served hereafter it would be unprofitable to discuss.

Judgment reversed, and venire facias de novo awarded.