Appeal, No. 315, Jan. T., 1955, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1952, No. 4335, in case of The H.M. Bickford Co. v. Ralph G. Speigle, trading as McNeill Lumber Co. and Ralph G. Speigle & Company. Judgment affirmed, as corrected.
Robert A. Detweiler, for appellant.
A. Samuel Buchman, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
These appeals are from a judgment for the plaintiff entered on the pleadings in an action of assumpsit for damages for the defendant's alleged breach of a written contract for the purchase and sale of a quantity of lumber.
Although the contract names as the respective parties thereto, The H.M. Bickford Co., a corporation, and McNeill Lumber Co., the plaintiff's complaint pleas as the defendant "Ralph G. Speigle, Individually and trading as McNeill Lumber Co. and Ralph G. Speigle & Company"; and the answer expressly admits the defendant's identity as so pleaded.
The contract was for the purchase by the plaintiff and sale by the defendant of a carload of tidewater red cypress lumber of specified quantity, grades, sizes and prices, f.o.b. Jacksonville, Florida, to be shipped to the plaintiff at New York City via named rail service. The defendant, in ostensible performance of the contract, shipped a carload of cypress lumber to the plaintiff at New York City. While the shipment was in transit, the defendant invoiced the plaintiff therefor at the prices specified for the grades and sizes called for by the contract. Before the shipment had arrived at the
point of destination in New York City, the plaintiff paid the defendant in full for the lumber at the prices, as inventoried, less the discount allowed by the contract. When the plaintiff subsequently received the shipment, the lumber was found not to measure up to the contract specifications either in grades or in average sizes of widths and lengths. The plaintiff thereupon rejected the shipment and promptly so notified the defendant, meanwhile placing the lumber in independent storage while awaiting the defendant's directions as to its disposition.
An express provision of the contract made the order for the lumber "subject to the Grading Rules and Sales Code of the S.C.M.A.", these initials being used to designate the Southern Cypress Manufacturers Association. Upon the plaintiff's rejection of the lumber, the defendant demanded that it be inspected by an official inspector of the Cypress Association. That was done and, in due course, the Association issued its written certificate of inspection, certifying that the lumber had been inspected by a named official inspector of the Association; the certificate also set forth the results of the inspection. A copy of the certificate of inspection was delivered to the defendant company which, in turn, sent a copy to the plaintiff together with a letter in behalf of the defendant which stated, - "The report speaks for itself, and I am at a loss to explain it. Please accept our sincerest apologies, and assurance that it was 'just one of those things that will happen.' Please advise what adjustment you feel equitable. Again let me express our regrets."
As the above concession of the defendant impliedly suggests, the inspection certificate plainly confirmed that the lumber failed to meet the contract specifications. More than half of it, in total quantity, was of ...