Tete Bros. v. Eshler , 11 Pa. Super. 224 ( 1899 )

Opinion by

Rice, P. J.,

This was an action for the price of a quantity of different kinds of tea, shipped by wholesalers doing business in Philadelphia, to a retailer doing business in Westmoreland county, upon a written order of the latter. The defendant asked the judge to charge the jury that if the tea was either “ unwholesome ” or “unsalable” when it arrived, the plaintiffs could not recover. The judge could not have charged as.requested without treating as wholly immaterial the facts, that one of the express terms upon which the tea was shipped was that “ all claims ” (evidently including a claim that the tea was not of the grade or quality ordered), “must be made immediately on receipt of goods; ” that the defendant made no complaint until three months after the tea was received, and even then did not intimate an intention to reject it; that in the mean time he had ample opportunity to examine it, and to ascertain its quality, and had, in fact sold part of it; and that he had not even opened one or two of the chests at the time of the trial. Upon what theory he could ask a jury to find that the tea contained in these chests was unwholesome or unsalable at the time it arrived has not been explained. But passing this, the facts above recited were not immaterial upon the question of the plaintiff’s right to recover anything. This was the only question raised by the defendant’s points, and is the only question we are to consider in disposing of the second and third assignments of error.

It is to be borne in mind, that no special grade of the different kinds of tea specified in the order was contracted for. It is very evident both from the prices and from the testimony of the witnesses, that it was a low and not a high grade that was ordered. And as to the evidence of its unsalableness, we remark hi passing that it is not to be marveled that the defendant’s customers found fault with the quality of tea which he bought at the wholesale price of fourteen to twenty-two cents a pound, and sold at retail for fifty cents and more a pound. It cannot be said that goods are unsalable merely because the buyer cannot sell them at the price he sees fit to put on them, and it is very questionable whether the evidence fairly shows more than this. We need not, however, go into that question, for it is clear, that, whether the tea was of the quality the defendant had a right to expect or not, he was not entitled to an unqualified affirmance of his points.

In executory sales, by description, the seller warrants that the article shall be of the kind ordered, and merchantable in quality: Fogel v. Brubaker, 122 Pa. 7. By this is meant, that it shall be salable in the market under the denomination mentioned in the contract: Benj. on Sales, sec. 673 a, note 15. “When the contract is executory, as it always is where a particular article is ordered without being seen, from one who undertakes it shall be of a given quality or description, and the thing sent as such is never completely accepted, the buyer is not bound to keep it, or pay for the article on any terms, though no fraud was intended by the vendor: ” Dailey v. Green, 15 Pa. 118, 126. After the actual reception of the goods, and the lapse of a reasonable time to examine them and to ascertain their quality, the buyer will be deemed to have accepted them, unless he then promptly exercises his right to reject them. This right must be exercised not only promptly but unequivocally. Mere complaints as to the quality of the goods, while exercising dominion over them inconsistent with ownership in the seller, are not sufficient. What the court said upon this subject (first assignment) was entirely correct, and applicable to the facts of the case.

As soon as the goods are accepted, the title passes to the buyer, and if there was no fraud or deceit in the sale, he cannot thereafter, revest title in the seller without the latter’s consent. It follows that after full acceptance, especially if it be under circumstances from which a waiver of strict performance on the part of the seller, may be found, the buyer is not at liberty when sued for the price, to avoid the contract in toto.

Whether or not, and under what circumstances, he may accept the goods and retain his right to damages for noncompliance with the contract, is another question not distinctly raised by the assignments of error. It is sufficient for present purposes to say that the court could not have affirmed the points without holding, as a matter of law, that the evidence was insufficient to warrant the jury in finding that there was an acceptance and a waiver, or assuming as a matter of fact, that the goods were absolutely worthless. This would have been grave error.

The assignments of error are overruled, and the judgment is affirmed.