Riley v. Hall 62 Pa. Super. 498

Riley v. Hall, Appellant.

Contract — Sale—Refusal to accept goods not specific — Measure of damages.

Where a vendee of goods not specific in quantity refuses without sufficient cause to accept the goods, the title remains in the seller, and the measure of damages for the refusal’ is not the contract price of the goods, but the difference between the contract price, and the market value on the day appointed for delivery.

Argued Oct. 18, 1915.

Appeal, No. 50, Oct. T., 1915, by defendant, from judgment of Municipal Court, Philadelphia Co., Nov. T., 1914, No. 588, on verdict for plaintiff in case of Roscoe C. Riley v. Walter P. Hall.

Before Rice, P. J., Qready, Head, Porter, Henderson, Kephart and Trexler, JJ.

Reversed.

Assumpsit for goods which the defendant is alleged to have purchased, but which he refused to accept. Before Bonniwell, J.

At the trial it appeared that suit was brought for $160.99 the contract price of a quantity of terrapin which the plaintiff claimed to have sold to the defendant and which the latter refused to accept.

The defendant testified as follows:

I have been doing business with Mr. Riley and on the 20th of November he sent me some terrapin and I paid •him for them, and he asked me whether I would need some more and I told him I guessed I would, and he asked me when and I told him I had a good lot on hand, but I would let him know later on. On Tuesday he called me up on the ’phone and said he had a lot of terrapin and I told him I didn’t want any more this week, I may be able to use some next week, and I immediately wrote him a letter, and on the Friday morning when I got to my place I got some terrapin and Mr. Riley was *499there at the same time, and I immediately sent the terrapin back to him.

Verdict and judgment for plaintiff for $160.99. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

A. E. 'Hurshman, with him Geo. W. Mitchell, for appellant. —

We contend that this was a mere offer to do business: Eckert y. Schoch, 155 Pa. 530.

At all events, if there was a contract, it was plainly executory.

When the agreement of sale is for things not specific as of a quantity of goods in general without specific identification or an “appropriation” of them, the contract is executory and property does not pass: Halderman v. Duncan, 51 Pa. 66; McCandlish v. Newman, 22 Pa. 460.

And the plaintiff should have alleged and proved damages: Unexcelled Fire Works Co. v. Polites, 130 Pa. 536; Baltimore Brick Co. v. Coyle, 18 Superior Ct. 186; Hall v. The Woolen Co-., 187 Pa. 18.

Thomas Nardello, for appellee,

cited: Scott v. Wells, 6 W. & S. 357; Leonard v. Winslow, 2 Gr. 139.

March 1, 1916: