Unexcelled Fire-Wks. Co. v. Polites

[To be reported.] 1. When an accepted order for goods, to be shipped to the buyer, amounts simply to a bargain and sale of goods not specific, and before they are separated from the bulk and set apart to the vendee, he notifies the vendor not to ship them, such notice is a revocation of the carrier’s agency to receive the goods, and a subsequent delivery of them to the carrier will not charge the vendee with their price, his only liability being for damages for refusing to accept them. 2. The present tendency of the American eases is to the doctrine that where the vendor stands in the attitude of complete performance on his part, he is entitled to the contract price as his measure of damages; but, on an executory contract for the sale of goods not specific, the measure of damages for a refusal to receive them, is the difference between the contract price and the market value on the day appointed for delivery. 3. A statement of claim, averring that certain goods, ordered by the defendant, were shipped by the plaintiff according to the order, but the defendant refused to receive them from the carrier; that they were then of no use to the plaintiff, having been manufactured for the defendant and unsalable to other customers, and that defendant, by reason of his contract, was indebted to the plaintiff in the amount of the contract price, will support a recovery of damages for a refusal to receive the goods.

APPEAL BY PLAINTIPE PROM THE COURT OE COMMON PLEAS OE LAWRENCE COUNTY. No. 188 October Term 1889, Sup. Ct.; court below, No. 20 September Term 1888, C. P. On July 20, 1888, tbe Unexcelled Fire-Works Company, a corporation of tbe state of New York, brought assumpsit against George Polites, filing a statement of claim wbicb averred that in the early spring of 1888 the defendant ordered from the agent of the plaintiff certain fire-works and celebration goods, to be manufactured by the plaintiff and shipped to the defendant, at specified prices; that said goods were manufactured and shipped by the plaintiff in accordance with the order, but the defendant refused to receive them; that the goods were then of no use to the plaintiff, having been made for the defendant, according to his order, and unsalable to the other customers of the plaintiff; that they had never been returned to the plaintiff or paid for by the defendant, or any person, and that, by reason of his contract to buy them from the plaintiff at the prices agreed upon, the defendant was indebted to the plaintiff in the sum of $332.36, with interest from May 16, 1888. The defendant’s pleas were non-assumpsit, payment with leave, etc. The case was tried October- 8, 1888, before Hazen, P. J., when a verdict was rendered in favor of the plaintiff for $332.36. Afterward, on motion of the defendant, the court set the ver<dict aside and granted a new trial. At the second trial, on April 23, 1889, the following facts were shown on the part of the plaintiff: On February 13, 1883, Alexander Morrison, an agent of the plaintiff company, called upon the defendant at his store, in New Castle, Pa., and received from him a written order for fire-works and celebration goods, amounting to $208.53. These goods, which were intended for what is known as the Fourth of July trade, were to be shipped by the middle of May to New Castle, and were to be paid for on or before July 10,1888. A few days after the giving of this order, the defendant sent by mail to Morrison, in care of the house, an additional order for similar goods, amounting to $123.83, to be shipped to Washington, Pa., where the defendant had another store, upon the same terms. These orders were forwarded by Morrison to the place of business of the plaintiff, in New York City, and upon their receipt there, the plaintiff notified the defendant by mail that they were accepted and would be duly filled-. The goods were shipped on May 15th and 16th respectively. Upon their arrival at their destinations the defendant refused to receive them, and on account of their explosive nature the common carriers returned them to New York and requested the plaintiff to take them back at once. They were subsequently stored in the plaintiff’s warehouse, subject to the order of the defendant, who was notified thereof. Charles A. Johnson, general manager of the plaintiff company testified on its behalf as follows: “We manufacture and import our goods, and the quantities manufactured and imported are based upon the orders received. The order of the defendant entered into our estimate of goods to be made up and imported, and said goods had been made up before any order of countermand was received from the defendant. These are seasonable goods, to be used in the celebration of the 4th day of July, and if we are obliged to accept goods turned back upon our hands in this way, it would result in immediate ruin to our business. At the close of our season, on the 4th day of July, we have very large payments to meet in settlement of the contracts which we have made for the materials and labor which enter into the annual manufacture of our goods. These contracts must be based upon the orders which we have received and accepted for goods, so that it would be impossible to place us in the same position as respects tbe goods ordered.” The plaintiff having rested, the defendant called John Venekos who testified that he was a clerk in the employ of the defendant; that the negotiation with the plaintiff’s agent, Morrison, respecting the orders for goods on which the suit was based, was carried on by the witness on the defendant’s behalf, though in his presence; that nothing was said about manufacturing any goods, and no authority to manufacture goods for the defendant was given to the plaintiff; that the witness did not know the plaintiff was a manufacturer or an importer; that in the conversation at the time of giving the first order, Morrison told the witness what kinds of goods the plaintiff had in stock, and on being asked for No. 9 cannon crackers, said “he didn’t handle them;” that about April 6, 1888, the witness wrote to the plaintiff telling it to cancel the orders, as the defendant did not want the goods, to which the plaintiff replied that it would ship the goods, and the witness wrote back that he would not accept them. On cross-examination, the witness was asked: Q. Did you receive the goods? A. No sir, I wrote them, “I will not accept them.” Q. Did you do anything before you told them you wouldn’t receive the goods? A. No, sir. Q. Did you not first telegraph to another fire-works company in New York asking them whether you would receive these goods that were sent by the Unexcelled Fire-Works Co.? Objected to by defendant’s counsel as immaterial and incompetent. Mr. Falls, for plaintiff: It was testified to in the other case, that before these parties had refused to accept the goods, after they were shipped to them here in New Castle and to Washington, they had sent on word to another fire-works company in New York, asking them whether or not they should receive the goods, and if they would be responsible for any damage the Unexcelled Fire-Works Co. might claim from them if they refused to accept them; for the purpose of showing that the contract was not in reality rescinded until after the goods were in New Castle. By the court: I do not see how that will show it. I cannot see what use you could make of it. The offer is overruled; exception.1 The testimony of this witness concluded the evidence in the case. In the paper-book of the plaintiff it was admitted and stated as a fact that the notice countermanding the orders, testified to by John Yenekos, was received by the plaintiff on April 9, 1888. The court, McMichael, J., charged the jury as follows: [This suit is brought to recover the price of certain goods ■which the plaintiffs allege were sold and delivered by them to the defendant. I had supposed that the case would get to the question of how much damage the plaintiffs were entitled to receive, if any, for the defendant violating his contract and refusing to receive the goods. It does not get into that position. It is standing squarely on the position that the plaintiffs here are entitled to recover the value of goods sold and delivered. In this case, there is no evidence that the plaintiffs sold and delivered to the defendant any goods, and therefore, the plaintiffs have failed to make out that case. The plaintiffs’ counsel declines to make any amendment in his pleadings in the case, and the court has no alternative but to take it as it stands on record, and that being the case or condition of things, your verdict should be for the defendant.] a The plaintiffs ask the court to charge you upon the following points: 1. That if the jury find that the defendant accepted unconditionally a proposition made to him by plaintiffs, then that proposition became a contract binding upon both parties. Answer: That .point is affirmed. As I understand, this point is intended to refer to the proposition made in this case and accepted by the defendant, made a contract. 2. If the jury find that plaintiffs had put themselves in the position to furnish defendant with manufactured articles, the price of which is in dispute, and that they did place themselves in this position, on the strength of the order received from defendant, before defendant had notified them that he did not want the goods, then defendant could not rescind the contract without the plaintiffs’ consent. Answer: That point is answered in this way: The defendant could not rescind or refuse to execute that contract and not make himself liable for damages to the plaintiffs for his breach of the contract, and if he did rescind or refuse to execute it, then he would be liable to the plaintiffs for damages; for any damages that the plaintiffs might sustain by reason of the defendant’s breach of the contract; and in that particular way he would not have a right to rescind it. 4. If the jury find that the goods were delivered to a common carrier, to he by them forwarded to defendant, it is a constructive delivery to defendant. Answer: That point would be affirmed, if it were not for the evidence in the case, “ that before the delivery of the goods to the common carrier the defendant had notified the plaintiffs not to deliver to the carrier, or not to forward them to him.” The evidence being uncontradicted that he had so notified, then the delivery to the carrier was no delivery to the defendant. [Gentlemen, I am sorry the case is in the shape it is, but you are not at liberty, under the pleadings here, to go into the question of whether the plaintiffs have sustained any damage because the defendant has refused to take these goods. You are confinfed to the question of whether the plaintiffs are entitled to recover the value of the goods, because the goods were sold and delivered to the defendant, and there not being sufficient evidence to warrant you to find a verdict on that subject, the court instruct you to find a verdict for defendant.] 8 The jury rendered a verdict in favor of the defendant. Judgment having been entered, the plaintiff took this appeal assigning for error, inter alia : 1. The refusal of plaintiff’s offer.1 2. The parts of the charge embraced in [ ] 8