Harrisburg Foundry & Machine Works v. Lebanon City , 195 Pa. 331 ( 1900 )

Opinion by

Mb. Justice McCollum,

The ordinance providing for the purchase of a steam road roller for use in the repair and construction of highways and streets in the city of Lebanon, appropriated $3,400 for that purpose, and authorized the highway committee, after a proper investigation and satisfactory trial to enter into a contract for such purchase. An offer was made to the committee by the Harrisburg Foundry and Machine Works to furnish one of their latest improved double engine steam road rollers for $3,250. The offer was in writing and specified and explained the component parts of the roller together with the materials of which they were constructed. The offer also included a promise of the Harrisburg Foundry and Machine Works to deliver the roller in the city of Lebanon, and to furnish a competent man to supervise the unloading of it, and to operate it on the streets of said city for a period of one week, upon the condition, that if the roller during such test was found to be competent to do the work for which it was constructed and intended, the city should accept the same, and pay for it the sum specified in the offer. The Harrisburg Foundry and Machine Works guaranteed that the roller was well made of first-class material and workmanship, and agreed that if any parts should give way on account of defects in either within one year from date of delivery, they would duplicate the parts free of charge. The offer was signed by the representative of the Harrisburg Foundry and Machine Works, and directly below the signature there was an acceptance of the offer signed by the highway committee. The roller was brought to the city and operated there in accordance with the offer. At the close of the period prescribed for the operation of the roller for the purpose of testing it, and after a competent person selected by members of the committee had carefully inspected it and declared that the best material and best workmanship were used in building it, the roller was delivered, by direction of two or more members of the committee, at a place designated by them for it. This delivery appears to have been considered by the Harrisburg Foundry and Machine Works and their agent as an acceptance by the city of their offer. The subsequent action of the highway committee tended to show that a majority of its members did not so regard it.

The Harrisburg Foundry and Machine Works brought suit against the city for the recovery of the sum specified in their offer as the price of the roller. On the trial of the case in the court below the jury were directed to render a verdict for the defendant on the ground that a satisfactory trial of the roller was not shown by the evidence. Prior to the delivery of the roller at the place provided for it there was no intimation from the committee that it was defective or that they were dissatisfied with the trial of it. This was a circumstance from which it might be inferred that the committee were satisfied with the roller.

We have already seen that it was a requirement of the offer that if it was demonstrated on the trial of the roller that it was competent to do the work for which it was constructed the city was to accept it and pay the price thereof. If, therefore, the offer was accepted by the committee with full knowledge of its terms and conditions, and there was a satisfactory trial of the roller subsequent to their acceptance of the offer, it is by no means certain that the acceptance would release the city from the liability incurred in the transaction.

It seems to us that under the circumstances the questions of fact raised by the testimony admitted on the trial of the case should not have been ignored, but that they should have been submitted to the jury for their determination under proper instructions from the court. An elaborate specification in this opinion of the questions of fact raised by the testimony referred to is not deemed necessary. It may be said, however, that the testimony submitted by the Harrisburg Foundry and Machine Works was sufficient to sustain their contention if credited by the jury, and that the testimony of some of the members of the highway committee was sufficient to defeat it if so credited. Our conclusion is that the court below erred in directing the jury to render a verdict for the defendant.

Judgment reversed and a venire facias de novo awarded.