Popper v. Rosen

Argued January 4, 1928. On October 7, 1926, the defendant, Frank Rosen, of Philadelphia, gave Leo Popper Son, of New York, a written order for 100 cases 45 Cathedral glass, of which ten cases were to be shipped at once and the balance, a carload, after January 1st. The ten cases were received and paid for but on January 12, 1927, defendant wrote plaintiffs asking for modification of the contract, including a special privilege of examination of the carload on arrival, for an extended credit as to payment, etc. Plaintiffs at once replied declining to grant any change in the contract and, on March 8, 1927, shipped the carload and tendered delivery thereof to defendant. The latter refused to accept and, to this suit, brought for the contract price, filed an affidavit of defense, which the trial court held insufficient, and defendant has appealed.

The averments in the affidavit were insufficient to prevent judgment. Under section 47 of the Sales Act of May 19, 1915, P. L. 543, 556, defendant was entitled to examine the contents of the car before accepting the glass, but he never sought to do so. Defendant's letter of January 12, 1927, was not confined to a request for an examination but embraced other conditions, so its rejection as a whole could not be construed as a refusal of the statutory right of examination. As defendant failed to set out a copy of his letter we cannot adopt his construction of the correspondence. The affidavit avers that some of the ten cases of glass were imperfect and, in response to defendant's complaint, plaintiffs' agent promised that all future shipments would be of glass of even thickness and regular color and that defendant would be given a reasonable opportunity to sort out and examine the glass to ascertain whether it conformed to the contract. The defect of this averment is an entire absence of any suggestion that the car lot of glass was not of even thickness and uniform color, or that defendant ever sought, or was refused, the privilege of its examination. While parties may modify a written contract by parol, there is no sufficient averment here that they did do so.

The affidavit avers that contemporaneous with the written order there was a parol agreement that defendant need not accept the carload of glass until the end of December, 1927. There is no averment of fraud, accident, or mistake; hence, so far as the alleged oral agreement conflicts with the writing, it cannot be given effect. See Gianni v. Russell Co., Inc.,281 Pa. 320. The instant case forms no exception to the rule stated in the case just cited and in other recent cases. Under the written order plaintiffs could deliver the glass on any day after January 1, 1927, and doubtless were required to do so within a reasonable time; neither party, certainly not the defendant, could claim a year's delay.

The affidavit further avers that the freight, which admittedly defendant was to pay, was more than the contract specified. If so, that afforded no ground for rejecting the shipment; but the excess could have been deducted when paying for the glass. To that extent there may have been an error in liquidating the judgment; but if so, as the weight of the shipment is not given, we cannot correct it. In any event the question of freight rates was not given as a reason for refusing the shipment and, therefore, cannot be interposed as a defense. See Haney v. Hatfield, 241 Pa. 413, 416; W. A. Pipe Lines v. Insurance Co., 145 Pa. 346; Niagara F. Ins. Co. v. Miller, 120 Pa. 504; United Fruit Co. v. Bisese, 25 Pa. Super. 170.

Appellant's final contention is that any remedy plaintiffs may have is an action for damages for breach of contract and not one for the price of the goods. The contract provided that the glass should be delivered through a carrier; therefore delivery to the carrier was a constructive delivery to the defendant and vested the title in him. "The general rule is that a delivery of goods to a carrier, pursuant to a contract of sale, is a delivery to the vendee sufficient to pass title to the goods, and the carrier at once becomes the agent of the vendee": New York Penna. Co. v. Cunard Coal Co., 286 Pa. 72,78; Pittsburgh P. P. Co. v. Cudahy Packing Co., 260 Pa. 135,139; and see Dentzel v. Island Park Association, 229 Pa. 403; Uniform Laws, Annotated (vol. 1), p. 104, 106. This is not changed by the fact, as in this case, that the bill of lading was taken in shipper's name and forwarded to consignee with instructions to the carrier to make delivery to him. See cases cited in Uniform Laws, Annotated (vol. 1), Supplement, page 62. Nor is the rule changed by the fact that after the defendant's refusal to accept the goods plaintiffs placed them in storage subject to his order. The title to the glass being in defendant, plaintiff may recover the contract price. Section 63 of the Sales Act, supra, p. 561, provides: "Where, under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods." See also Williston on Sales (vol. 1), p. 602; Ibid. (vol. 2), p. 1398; Uniform Laws, Annotated (vol. 1), p. 208. There are cases, for example, when articles without market value are made on a special order, in which the vendor may recover the contract price, although the title has not passed to the vendee. See Flannery v. Wessels, 244 Pa. 321.

Defendant filed one supplemental affidavit of defense and the record fails to show any request for leave to file another; hence, there is nothing upon which to base the complaint that the trial court therein committed error.

The judgment is affirmed.