American Bridge Co. v. Duquesne Steel Foundry Co. , 1905 Pa. Super. LEXIS 228 ( 1905 )

Opinion by

Beaver, J.,

Plaintiff brought suit against the defendant for certain merchandise bought by the latter from the former. Defendant set up as a defense a balance due on a previous account for materials purchased by the plaintiff from the defendant. A material question in the case arose as to the point, of delivery of the materials last mentioned. The contract was in writing, based upon the correspondence between the parties. The material parts aré as follows :

Plaintiff, writing defendant, October 16,1901, says : “Please quote us best price f. o. b. cars East Berlin, Conn., for the following material, stating how soon same could be delivered.” Defendant answered, October 17, 1901: “Your inquiry of October 16, with drawing No. 5, received. We would be pleased to quote you the castings required for the bridge at New London at 3f cents f. o. b. our works.” The acceptance of the plaintiff was under date of October 2b, 1901. “ Please deliver to us at Berlin plant American Bridge Co., East Berlin, Conn.” (then follows the list of articles) “ to be furnished at price of 3|- cents per lb. f. o. b. your works.” “ The above castings to be furnished in the rough; all necessary machine work to be done at the plant.”

The court charged that this required the delivery to be made at East Berlin, Conn. Of the correctness of this instruction we think there can be no question. In its preliminary inquiry and in the acceptance of the defendant’s offer, the place of delivery is specifically mentioned. In the defendant’s offer, there is no place mentioned. It is true the quotation is for price at its works, but that, as is clearly shown by the acceptance of the plaintiff, was simply the price and did not designate the place of delivery. The full price would be the price per pound f. o. b. works plus railroad freight to East Berlin, Conn.

We see no error in the other instructions complained of. It is alleged by the defendant that the Pittsburg Testing Laboratory made an inspection at its works. It also appears that one of the inspectors of the Pittsburg Testing Laboratory, who was in the employ of the municipality for which the bridge was to be erected, made an inspection at the bridge and condemned the castings, which were returned and received by the defendant, for the price of which it claims a set-off to the claim of the plaintiff. As will be observed from the quotation of the plaintiff’s acceptance of the defendant’s offer, the castings were to be furnished at its works in the rough, the necessary machine work to be done where they were to be used.

It seems clear that the inspection at the bridge was recognized by the president of the defendant company, for he says, in a letter of March 13 :

“We have your letter of March 12, in regard to the castings furnished for your Berlin plant, and note with regret that defects have developed in some of the castings. This is an experience that is new to us, very few of all the castings we have furnished your company ever having been rejected. Such castings as may be rejected you will kindly have returned to Ooraopolis.”

We see no error in the construction which the court placed upon this letter.

• The defendant claimed, however, that after the castings had been returned and received by it, they were re-examined and a disagreement arose as to whether or not they were actually defective. The fact that the inspection of the Pittsburg Testing Laboratory was to be conclusive seems to have been clearly recognized, so that the decision of its inspector, whether he was paid by the municipality or not, was complete justification for the plaintiff in returning the castings which were found, upon being machined, to be, as he determined, defective.

The contract being in writing, its construction was for the court. The determination of the trial judge as to the place of delivery was correct. As to the facts left to the jury, they were fairly submitted. "We can see nothing in the case requiring our intervention. The assignments of error are, therefore, all overruled.

Judgment affirmed.