Opinion by
The plaintiff brought this action to recover the price of a carload of lumber sold and alleged to have been delivered by him to the defendants. The trial in the court below resulted in a verdict and judgment in favor of the defendants and the plaintiff appeals. The lumber had been shipped in a box car and upon arrival at the lumber yard of the defendant company it was taken from, the car and piled in a shed, where it remained for some time, when a fire consumed it and all the other lumber on the premises. The defendants contended at the trial in the court below that this car of lumber had not been of the kind which "they contracted to buy, that after inspection they had declined to accept it and notified the plaintiff of such refusal; that the title to the lumber had not passed, and that the property when destroyed was that of the plaintiff.
The case as tried in the court below turned upon two questions: (1) Was the carload of lumber of the kind which the defendants had contracted to buy? and (2) did the defendants promptly refuse to accept the lumber and notify the plaintiff of such refusal? The contract for the purchase of the lumber was oral, for although the agent of the plaintiff made a memorandum of it in writing at the time that writing was not signed by either of the. parties. There is no dispute under the evidence that the lumber which the defendant contracted to buy and the plaintiff to deliver was to be “a car of No. 1 common poplar lumber.” There was no controversy under the evidence that the term by which the lumber was described has a distinct significance in the trade. It was conceded that in this kind of lumber the widths must be five inches or over and the lengths must run from ten to sixteen feet. There was a conflict of evidenc'e as to whether this carload of lumber complied with this classification, but
The appellant contends, however, that even if the lumber was not of the kind which he had contracted to deliver, that the defendants must be held to have accepted it, for the reason that they did not definitely refuse to accept and made no offer to return the lumber. We have carefully considered the evidence and are of opinion that this question also was for the jury. The lumber was shipped in a box car and arrived at the lumber yard of the defendant company on January 1, 1907. The defendants were entitled to a full opportunity to inspect the lumber before they were called upon to determine whether they would accept or refuse it; the title to the lumber would not pass until after such opportunity to inspect the goods and pass upon them had been presented: Tete Bros v. Eshler, 11 Pa. Superior Ct. 224; Baltimore Brick Co. v. Coyle, 18 Pa. Superior Ct. 186; Fogel v. Brubaker, 122 Pa. 7; Benjamin on Sales, secs. 1042-1051. The evidence was sufficient to sustain a finding that it was necessary, in order to properly inspect the lumber, that it should be taken from the box car in which it arrived. The mere fact that the lumber was taken from the car and piled in a shed did not necessarily constitute an acceptance of the goods as a compliance with the contract. The defendants notified Wagner, the agent of the plaintiff, on January 4, that they were not satisfied with the grade, lengths and widths of the lumber and that it was not what they had contracted for, and that agent admitted that the pieces were narrower and shorter than the average. Wagner, the agent of the plaintiff, was called as a witness by the latter and upon cross-examination admitted that the defendants told him at that time that they would not take
The parties had by their agreement fixed the price which was to be paid for No. 1 common poplar, under the contract, and if the plaintiff was entitled to recover he was entitled to recover the price agreed upon. There was no error in the exclusion of the testimony offered by plaintiff as to the market priee of lumber of that kind, at the time of the transaction. There was no testimony which' would have warranted a finding that the plaintiff had agreed to sell or the defendants had agreed to purchase “No. 2 common poplar,” and evidence as to the market, price of that kind of lumber was properly excluded. The contract for the purchase of this lumber was oral and referred to lumber designated as No. 1 common poplar. It was entirely proper to admit testimony as to all that was said by the parties at the time of the contract, and to show that they had before them samples of the very grade of lumber to which the contract referred and that each of the parties clearly understood exactly what they were talking about. All the specifications of error are dismissed.
The judgment is affirmed.