Williams v. Wenger

48 Pa. Super. 497, 1912 Pa. Super. LEXIS 400

• Court: Superior Court of Pennsylvania
• Decided: March 1, 1912
• Docket: Appeal, No. 142
• Status: Published

Opinion

Opinion by

Hendekson, J.,

The jury found against the defendant on the question of the existence of a custom relating to the retention and return of merchandise sold by manufacturers or jobbers to customers, and conceding that the evidence was sufficient if credited to establish a custom that part of the controversy is disposed of. The only remaining question is as to the right of the defendant on the contract for the purchase of the goods, where time is of the essence of the contract, to receive and examine the consignment and select and retain such portions as suited his interest and return the remainder to the consignor because the shipment was not made within the time limited in the agreement. The goods were ordered at one time; were all trimmings for ladies’ dresses and were to be delivered at the. same time. The price for the lot was $85.80 and in the order given the price of each land was set forth. The portion which the defendant wished to keep he retained-; the balance he reshipped to the plaintiffs. Where the objection to the receipt of the goods went to the whole shipment because of the failure to deliver in time, the defendant should have refused to accept the whole consignment. It was not a case of a breach of warranty as to part, as in the delivery of a variety of merchandise on an express or implied warranty as to quality where the warranty failed as to part. Here the breach alleged went to the whole transaction, and under the authority of McKay & Co. v. McKenna, 173 Pa. 581, and Gausler v. Bridges, 13 Pa. Superior Ct. 646, the instruction of the court to the jury set forth in the first assignment was correct. The part of the charge contained in the second assignment is free from error. The defendant set up the defense of a custom in the trade which permitted him to retain a part and return a part of the goods ordered. The existence of such custom was denied by the plaintiff and the testimony of a witness on the subject stated facts tending to show the unreasonableness of such a custom. The court had reference to that testimony and there was no impropriety in calling the attention 'of the jury to the plaintiff’s view of the matter after the defendant’s position had been stated. No point nor assignment of error raised the question of the duty of the plaintiff to retender the goods to the defendant nor of the measure of damages. The case was evidently defended in the court below on the theory that as a matter of law the defendant had a right to retain a part of the shipment and return a part and that by a custom prevailing in the trade he was permitted to do the same thing. If instructions as to the true measure of damages had been desired it was the duty of the defendant to call the attention of the court to his position on that subject. As the case was tried the plaintiff was entitled to recover the amount of his bill or he was not entitled to anything.

The judgment is affirmed.