Martinez v. Earnshaw

Citations

• 143 Pa. 479
• 22 A. 668
• 1891 Pa. LEXIS 938

Syllabus

<p>[To be reported.]</p> <p>(a) Plaintiffs sold to defendant “dry iron ore of usual quality ” at a certain price per ton, “ guaranteed to contain a yield of fifty per cent of iron in the natural state, with a sliding scale ” at a certain rate for every unit over fifty per cent, and a deduction at a certain rate for every unit under fifty per cent, final settlements on output weights and assays at port of discharge.</p> <p>(b) To a statement of claim for damages for the defendant’s refusal to accept the full quantity of ore sold, the defendant filed an affidavit of defece averring that a portion delivered did not contain fifty per cent of iron in the natural state, and that as soon as he discovered this he refused to receive any more ore under the contract:</p> <p>1. Prima facie the contract imported a guaranty demanding literal performance. That a sliding scale was provided for an allowance for an excess of iron, and a diminution for a deficiency, was not controlling. Apparently, the latter created but an option, which did not mitigate the strictness of compliance upon which the purchaser might insist.</p> <p>2. Though a trade custom, or other relevant facts might- affect the determination of the defendant’s right to strict- performance under the contract, yet a literal breach thereof by the plaintiffs being averred by the defendant, that averment was sufficient to prevent a summary judgment for the plaintiffs without a hearing.</p>