Ebstein v. Philadelphia Knitting Mills Co. , 1911 Pa. Super. LEXIS 385 ( 1911 )

Opinion by

Head, J.,

In this action of assumpsit the plaintiffs, manufacturers of steel in Brussels, sought to recover the price of a certain shipment following a written order for goods signed by the defendant. The execution and delivery of the written order are not denied. The defendant in its affidavit sought to defend on two distinct grounds, (a) that the execution of the order had been induced by the fraudulent conduct of the representative of the plaintiffs; (b) that under the contract as it was actually made the goods ordered were to be delivered at a particular place named; that they never were thus delivered; that the defendant had never received them and had notified the plaintiffs and the railroad company that certain packages in the hands of the railroad company, consigned to the defendant, would not be received; that as a consequence the title to the goods had never passed to the defendant, and that even if there was a breach of the contract the plaintiffs could not under these circumstances recover the contract price. The learned court below made absolute a rule for judgment for want of a sufficient affidavit of defense and judgment was entered for the full purchase price of the goods mentioned in the order.

We agree with the learned court below that the affidavit of defense set up no facts on the first ground which would be sufficient to relieve the defendant from the liability imposed by the written order which admittedly had been signed by its executive officer. The opinion filed by the court below so fully vindicates the correctness of the conclusion reached, as to that branch of the defense, that it would be useless for us to again analyze the affidavit and review the several averments upon which the defense, to that extent, was predicated. On the other ground of defense, as we view it, the affidavit fairly discloses a state of facts which, if established by proof, would prevent a recovery for the full purchase price of the goods. As already indicated, the affidavit avers that the goods ordered were to be shipped along with and as part of a consignment “to Mr. Pooley whose factory was very close to the factory of the defendant company;” that the goods never were so shipped and-never reached the defendant and that as a consequence there never was a delivery to the defendant.

It may be conceded as a general principle that where goods are purchased from a vendor or manufacturer residing at a distance, and where the contract is silent as to the place or manner of delivery, a delivery to a common carrier .of the goods duly consigned to the purchaser will be regarded as a delivery to the latter, and the title to the goods will pass as soon as they are received by the carrier. But it is also true that delivery is a question of intention, that if the contract between buyer and seller provides for a delivery at the place of destination, then a delivery to the carrier will not be regarded as a delivery to the purchaser and the title to the goods will remain in the vendor until an actual delivery at the place mentioned in the contract takes place. In Dannemiller v. Kirkpatrick, 201 Pa. 218, Mr. Justice Mestrezat, after describing the general conditions under which delivery to a carrier will be regarded as a delivery to the vendee, goes on to state: “This rule, however, does not obtain where the parties have otherwise stipulated in their agreement. If it is the intention of the parties, and it so appears from the contract, that delivery is to take place at the destination of the property, and that the title is to remain in the consignor until that time, then delivery to the carrier does not divest the title of the vendor to the property, etc. . , . It, therefore, becomes a question in cases of this character as to where the delivery of the goods is to be made and when the title is to pass to the purchaser. If the facts are not in dispute it is a question of law for the court, but if the evidence is conflicting the question must be determined by a jury.”

Turning then to the written order upon which this action is founded, we find the only reference to the place or manner of delivery is contained in the following words: “60 c. Bb. del’d here.” If, as contended for by the ap-pellees, the expression quoted had no reference to the place and manner of delivery but was intended merely to indicate that the price to be paid was to include the cost of carriage, then the written order is silent as to the place or manner of delivery and the agreement of the parties on that subject would be matter for proof on the trial. At this stage of the case we must take the averments of the affidavit as if they had been established by evidence and therefore we must conclude that as the parties had agreed how the goods should be delivered, title would not pass by their delivery to a common carrier in Belgium or at the port of entry in this country, but the contract would remain executory until delivery had taken place in the manner specified in the contract. If therefore there was an unjustifiable breach of an executory contract by the defendant, the measure of damages would be the difference, if any, between the price agreed to be paid and the market value of the goods at the time and place of the breach.

We are of the opinion therefore that as the record now stands the defendant has filed an affidavit sufficient to prevent a summary judgment for the purchase price of the goods and that the cause should have gone to trial in order to determine what the contract really was as to the time, place and manner of delivery of the goods mentioned in the order.

Judgment reversed and a procedendo awarded.