Shaw v. Fleming

Opinion,

Mr. Justice McCollum:

There are twenty-five specifications of error in this case, but not so many questions. It is an action brought by the appellants to recover the price of worsted yarn which they allege they sold to the appellee in February and March, 1887, and by his directions delivered to one John W. Brooke, a manufacturer of cloths. There is no dispute concerning the quantity or price of the yarn. The defences to the claim are manifold and somewhat complicated. The appellee says that the yarn was not sold to him, but to Brooke, and that he acted in the transaction simply as a broker; that the yarn was sold by sample, and at the request of the appellants he guaranteed the sale; that they subsequently entered into a new contract with Brooke, by which the appellee was released from liability to them, and, finally, that the yarn was not equal to the sample, and by reason of its inferior quality Brooke sustained a loss of about three thousand dollars in excess of the price he agreed to pay for it.

In considering these defences in their order, we' inquire, first, whether the yarn was sold to the appellee. If it was not, that is a sufficient answer to the appellants’ claim and the end of the case. If it was, and the sale was by sample, it was the duty of the vendors to deliver yarn which was merchantable and corresponded in kind with the sample. The sale was prior to the act of April 13, 1887, P. L. 21, relating to sales by sample, and is therefore unaffected by it. If the vendors delivered yarn which was merchantable and followed the sample in kind, they were entitled to recover the price of it from their vendee. Did they release him from his liability as purchaser by anything which passed between them and Brooke, respecting the quality -of the yarn and luis loss upon it? There was certainly no formal contract between them, nor any agreement whatever to which the appellee was a party. Brooke testified that the yarn was of inferior quality and that he threatened to cut it out of his looms, but that, on the assurance of the appellants that they would stand the loss, if any, he proceeded to work it up. In all this, if true, there was no interference between him and his vendor, anc[ nothing to impair the obligation of the latter to the parties from whom he purchased. It might have a bearing on the question whether the yarn was sold by the appellants to Brooke or Fleming, but could not destroy a contractual relation existing between Fleming and the appellants. There was no element of a novation in it. If it obliged the appellants to account to Brooke for his loss on the sale of cloths manufactured from the yarn, it did not make such loss a set-off in this action.

The testimony in relation to this loss was irrelevant and confusing, and its presence in the case coupled with the instructions upon it may have defeated the appellants. Instead of excluding the evidence when offered, or subsequently withdrawing it from the jury, as he should have done, the learned judge instructed them that the appellee was entitled to a credit for the loss, although he told them at the same time that the talk or agreement under which he held that the appellants became liable to Brooke for it, destroyed the appellee’s liability to them. Under these instructions, the appellee was allowed to appropriate in payment of a claim, from which it was ruled that he was released, a loss sustained by his vendee. But, as we have seen, if the appellee was a purchaser of the yarn, his obligation to pay his vendors the price of it, was not affected by anything which passed between them and Brooke, and there was error in the admission of evidence as to the latter’s loss, and in the instructions founded upon it. If Brooke was the purchaser of the yarn from the appellants and they sued him for the price of it, we might properly inquire how their respective rights and obligations under the sale were affected by what passed between them concerning the quality of the yarn and a loss by the vendee. In such case, if it was ascertained that the parties made the sample the standard of quality, and the yarn delivered was inferior to it, the rule by which the vendee’s damages should be measured and the competency of the evidence offered to establish them might require consideration. But as these questions are not legitimately before us, and as the discussion of matters not involved in the case is profitless and often mischievous in its consequences, we express no opinion upon them. Indeed, we cannot intelligently consider them until the parties have submitted their claims and proofs with reference to the issues joined between them.

We summarize our conclusions in the case as follows: The appellants claim that they sold the yarn to the appellee, and they must prove this claim or fail in their action. If they sold the yarn to him by sample, and delivered yarn which was merchantable and followed the sample in kind, they are entitled to recover from him the price of it, unless they have released him from his liability to them as a purchaser. The evidence of what passed between them and Brooke respecting the quality of the yarn, and their responsibility to him for a loss, is admissible on the question whether Brooke or Fleming was their vendee, but it is not sufficient to relieve the latter from his obligation to pay for the yam if he was the purchaser of it; nor is a loss which his vendee sustained admissible as a set-off in this action for the price. To the extent that the rulings complained of are in conflict with this opinion, the specifications of error are sustained.

Judgment reversed and a venire facias de novo awarded.