Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
This is an action at law for rescission of a contract and restitution of money and property. The plaintiff, the Domestic Electric Refrigerator Corporation, avers that the defendant, the Sharples Separator Company, continually breached its contract to manufacture refrigerators by delivering defective and inferior machines to the plaintiff. We shall speak of the parties as they stood in the District Court. The defendant denies that it broke its contract and counterclaimed, averring that the plaintiff repudiated the contract. The case was tried to the District Court and a jury. The court submitted the case to the jury on the theory that, under the terms of the contract, the plaintiff could rescind the contract and demand the return of its property and money in the defendant's hands, and charged the jury that the only question for it to decide was which of the two parties breached the contract. The jury found for the plaintiff, and a judgment was entered on the verdict. The defendant appealed.
The defendant agreed to manufacture 6,000 electric refrigerators for the plaintiff. It was equipped to manufacture and had manufactured for many years ceram separators which required skill and precision. It had to convert its plant to enable it to manufacture the refrigerators according to the design and specifications furnished it by the plaintiff, which was entirely responsible for the marketability and usefulness of the machines if they were properly manufactured. The plaintiff advanced the defendant money on the contract to purchase tools and for working expenses. The contract was modified several times as to quantity, prices, etc., but these modifications are of no concern here.
The defendant agreed to manufacture, sell, and deliver f.o.b. its plant the refrigerators in accordance with the specifications furnished by the plaintiff, which had the right to maintain, at its expense, inspectors in the defendant's plant. The contract provided that these inspectors, "shall make final acceptance of all plants shipped and the manufacturer's responsibility shall be confined to its guarantees under this agreement. If the Buyer waives the right to inspect any or all of said plants, then Buyer shall accept the inspection of the Manufacturer's inspectors in place thereof, said acceptance shall be as equally binding as that of the Buyer's inspectors." The manufacturer was not to be responsible for damage or any injury to the refrigerators after they left its premises "except as provided in article seventh of its guarantee," which is as follows: "32 Seventh. The Manufacturer guarantees that all Refrigerators and Parts thereof manufactured by it hereunder shall be of first class workmanship and material and shall be in accordance with the drawings and specifications furnished by the Buyer (and accepted by the Manufacturer) to the extent of replacing F.O.B. its works, West Chester, Pa., any mechanical parts which do not meet this guarantee and which are returned to the Manufacturer within one year from the date of their original shipment. all parts on which claim is made are to be returned to Manufacturer's Works without any expense to Manufacturer. The Manufacturer takes no responsibility for the quality or performance of the refrigerator or parts except as provided in this paragraph."
After the plaintiff had accepted and paid for 1,700 of the 6,000 units, it terminated the contract and brought this action on the theory that it had the right to rescind the unexecuted part of the contract and refuse to accept, or pay for, any machines to be manufactured thereafter, because the defendant, it said, had continually produced in an unworkmanlike manner defective machines which did not conform to the specifications. It contends that the defendant thus breached the express warranty contained in "32 -- Seventh" of the contract, and that the restriction of liability therein for a breach of warranty did not prevent the plaintiff from rescinding the contract, but merely prevented the defendant from recovering damages for the breach. In this suit the plaintiff sought to have returned to it the money it advanced to the defendant and the property it purchased with the money.
The defendant, on the other hand, contends that under the terms of the contract there could be no breach except as to those refrigerators which did not meet its guaranty as to workmanship, material, and construction and as to those the contract provided a method of replacement which it always stood ready to perform.
The trial judge instructed the jury to find which of the parties was responsible for the breach of the contract. In submitting the case, the learned judge charged the jury that the plaintiff alone was responsible for the design and specifications of the refrigerators, and that the defendant was only obligated to manufacture the machines in a workmanlike manner according to the specifications and to replace defective parts within a year from the date of shipment, but he further charged that, notwithstanding the inspection and acceptance of the machines and the limited duty to replace defective parts, the jury might find that the defendant breached the contract if it failed to manufacture the refrigerators in a workmanlike manner and according to the specifications of the contract.
The defendant contends that the trial court's interpretation of the contract is erroneous, and argues that, under the terms of the contract and the evidence submitted by the plaintiff, it was not guilty of a breach of the contract. The question that we must decide is whether or not the trial court's theory of the case, as expressed to the jury, was correct, and, in order to do so, the contract as a whole and the circumstances surrounding its execution must be considered.
As a general principle, the parties to a contract to sell personal property may provide whatever terms they choose. They may exclude all ordinary rights or provide that the rights of the buyer for a breach of warranty shall be limited to a certain remedy, and, when they provide for an exclusive remedy, the buyer must avail himself of it or go without redress. Sanford v. Brown Bros. Company, 208 N.Y. 90, 101 N.E. 797, 50 L.R.A. (N.S.) 778; Hill & MacMillian, Inc., v. Taylor, 304 Pa. 18, 155 A. 103, 75 A.L.R. 1022; Wasatch Orchard Company v. Morgan Canning Company, 32 Utah, 229, 89 P. 1009, 12 L.R.A. (N.S.) 540; Williston on Sales, § 611a. In recognition of the power of the parties to vary the usual obligations of a contract, the Pennsylvania Sales Act provides: "Where any right, duty, or liability would arise under a contract to sell or a sale, by implication of law, it may be negatived or varied by express agreement. * * * All implications from surrounding circumstances, or from the nature of a contract or agreement, shall be regarded as forming part of the contract or agreement." Act of May 19, 1915, P.L. 543, § 71, 69 PS § 332; Burntisland Shipbuilding Company v. Barde Steel Products Corporation (D.C.) 278 F. 552, 554.
The defendant had never manufactured electric refrigerators, and knew nothing of them. By the contract, it agreed that the machines should be of first-class workmanship and material and made in accordance with the drawings and specifications furnished by the plaintiff, which was alone responsible for the marketability and usefulness of the product. The defendant was merely obliged to follow the terms of the contract, and, if it did not do so, the contract provided the remedy, and this was exclusive.
The terms of the contract considered as a whole, and not fragmentarily, seem clear. Section 8, third article, is concerned chiefly with the consideration for the agreement, but it also provides generally that the defendant agreed to deliver, etc., at its plant, refrigerators manufactured, tested, and inspected in accordance with the plaintiff's specifications. Standing alone, it might possibly support the contention of the plaintiff, but, when read in connection with the following provisions in the same article, it does not do so:
"25. The Buyer shall have the right to maintain at its own expense an inspector, or inspectors, in the plant of the Manufacturer. Said inspector or inspectors shall make final acceptance of all plants shipped, and the Manufacturer's responsibility shall be confined to its guarantees under this agreement. If the Buyer waives the right to inspect any or all of said plants, then Buyer shall accept the inspection of the ...