Birch v. Andrew's Mill Co.
| Decision Date | 09 December 1912 |
| Docket Number | 48-1912 |
| Citation | 52 Pa.Super. 193 |
| Parties | Birch v. Andrew's Mill Company, Appellant |
| Court | Pennsylvania Superior Court |
Argued October 15, 1912
Appeal by defendant, from judgment of C.P. No. 4, Phila. Co.-1910 No. 470, on verdict for plaintiff in case of Arthur Birch trading as The Arlington Machine Works, v. The Andrew's Mill Company.
Assumpsit for a machine sold and delivered. Before Audenried, J.
The facts are stated in the opinion of the Superior Court.
Verdict and judgment for plaintiff for $ 798. Defendant appealed.
Error assigned among others was refusal of binding instructions for defendant.
Allen M. Stearne, for appellant. -- The appellee adroitly changed the appellant's offer from a " sale on trial" to a " sale and return," and in addition thereto affixed certain conditions to the right to return (and stipulated his terms), as to all of which appellee never assented, either by act or deed: Royal Ins. Co. v Beatty, 119 Pa. 6; Ins. Co. v. Johnson, 23 Pa 72; Allen v. Kirwan, 159 Pa. 612.
John Weaver, for appellee. -- All of the decisions in Pennsylvania require that the rejection of any article purchased in this way must be in good faith and not out of mere caprice: Seeley v. Welles, 120 Pa. 69; Waymart Water Company v. Waymart Borough, 4 Pa.Super. 211; Sidney School Furniture Company v. Warsaw School Dist., 130 Pa. 76.
When a case has not been passed upon on its merits, such a judgment or decree will not constitute a bar to the second suit: Carmony v. Hoober, 5 Pa. 305; Fleming v. Insurance Company of Pennsylvania, 12 Pa. 391; Haws v. Tiernan, 53 Pa. 192; Vought v. Sober, 73 Pa. 49; Follansbee v. Walker, 74 Pa. 306; Detrick v. Sharrar, 95 Pa. 521; Weigley v. Coffman, 144 Pa. 489; Blood v. Crew Levick Company, 177 Pa. 606; Wistar v. McManes, 54 Pa. 318.
Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
This is an action of assumpsit brought to recover the price of an Arlington cloth opener and folder which the plaintiff alleged he sold and delivered to the defendant in October, 1909. The learned court below submitted the case to the jury and the result was a verdict in favor of the plaintiff for $ 798, it being the contract price of the machine, with interest.
The appellant's learned counsel has filed twenty-two specifications of error and on examination of the same we conclude that they are all in violation of the rules of this court, with the exception of the third, fourth, fifth, sixth, seventh and eighth, and, therefore, sixteen of said specifications will not be considered. The serious fault with the specifications, not considered, is that they do not quote ipsissimis verbis what the learned court said in regard to each of said specifications: Superior Court Rule XV and Supreme Court Rule XXVII.
But we have carefully considered the case on its merits and have reached the conclusion that the specifications do not raise reversible error. The plaintiff's declaration is in assumpsit and sets up a claim of $ 700, with interest thereon, for the alleged contract price of an Arlington cloth opener and folder sold and delivered to the defendant in October, 1909, upon a contract which arose out of a series of letters passing between the parties between September 4 and September 15, 1909.
The letter of September 4 was from the defendant to the plaintiff and contained the following:
" Kindly send us particulars and price of the Arlington Cloth Opener and Folder and oblige."
Next was a letter of September 7, from the plaintiff to the defendant in part as follows:
Next was a letter of September 13, from the defendant to the plaintiff containing the following:
Finally, was a letter of September 15, from the plaintiff to the defendant containing the following:
At the trial the plaintiff claimed that the machine was duly constructed and delivered to the defendant and was in the actual possession of the latter from October 16 to October 29, 1909, without any complaint or any refusal to receive the same, when, on October 29, 1909, without unpacking the boxes or packages in any way and without setting up the machine and giving it any trial, the defendant shipped the machine back to the plaintiff. The plaintiff testified that having manufactured the machine for the defendant he notified the latter not to ship it and that he would not accept it if it was shipped. Plaintiff did not accept the machine and it was subsequently sold for storage in Boston and the defendant, the Andrew's Mill Company, bought it.
It appears from the testimony that the machine was sold and delivered in Massachusetts and it would appear to be a contract of that state, and it is argued, and some Massachusetts cases cited, on the theory that the legal questions must be determined under the laws of that state but we find no proof in the record as to what the Massachusetts law is and therefore it is our duty to assume that it is the same as the Pennsylvania law on the questions involved. If, however, the transaction was a sale and delivery of the machine it seems clear, under the...
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