Appeal, No. 105, Jan. T., 1952, from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1951, No. 6453, in case of Dant & Russell Sales Co. v. Washington Lumber & Millwork Co. Judgment affirmed.
Isadore Gottlieb, for appellant.
Frederick A. Van Denbergh, Jr., with him Philip M. Hammett and Saul, Ewing, Remick & Saul, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On September 14, 1950, the plaintiff Dant & Russell Sales Co., accepted from the defendant Washington Lumber & Millwork Co., an order for 180,000 feet of No. 3 Common Green Douglas Fir Lumber. The lumber at the time was cargo aboard the steamship Cygnet bound from the Pacific Coast to Philadelphia. The ship arrived at the port of its destination on October 10, 1950, whereupon the lumber ordered by the defendant was unloaded and stacked at the pier of the Ontario Land Co., which notified the defendant of that fact.
On September 18, 1950, National Production Administrator Wm. H. Harrison, under the authority of the Defense Production Act of 1950, promulgated N.P.A. Regulation 1, which prohibited the storing or possessing of certain commodities beyond designated fluctuating quantities.
On October 16, 1950, the defendant notified the plaintiff that it could not accept the lumber because of the NPA regulation referred to, and accordingly asked for a cancellation of the order. The plaintiff refused to accept the cancellation and in due time sued on the contract of sale. The lower court entered a judgment in favor of the plaintiff, and the defendant appealed to this Court.
Section 10.8 (sub-section a) of the NPA regulation in dispute provides: "Outstanding orders, placed before the effective date of this part, for delivery earlier or in greater quantities than a person is permitted to receive, must be promptly cancelled, reduced or deferred to the extent that the original scheduled delivery would result in his exceeding his practicable minimum working inventory."
The defendant did not make a prompt cancellation of its order and it was not until one week following the arrival of the lumber that it notified the plaintiff of its intention not to accept it.
The lower court held, and properly so, that the sale of lumber was consummated on September 14, 1950, when the order was accepted, and that the title to the lumber passed on that date. This conclusion is reinforced by the fact that the price was fixed F.O.B. Dock, which signifies that the price was to include costs of transportation, back hauling, marine insurance and insurance against fire, theft, pilferage, breakage, non-delivery and oil damage. Smith Co. v. Marano, 267 Pa. 107, 110 A. 94. In that case, the Court emphasized the passage of title prior to arrival of the goods by pointing out that there would be no interest on the part of the purchaser to pay for transportation costs and insurance covering the goods in transit unless he were already the title owner thereof: "'It is difficult to understand why the buyer should be concerned in any stipulation regarding payment of insurance, either by himself or by the seller, if he had no property in the goods during transit, and consequently no interest in the subject of their insurance. On the other hand, if he ...