Blaisdell Filtration Co. v. Bayard & Co., Inc.
| Decision Date | 20 March 1933 |
| Docket Number | 337 |
| Citation | 166 A. 234,311 Pa. 6 |
| Parties | Blaisdell Filtration Co. v. Bayard & Co., Inc., Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 6, 1933
Appeal, No. 337, Jan. T., 1932, by defendant, from judgment of C.P. No. 2, Phila. Co., June T., 1929, No. 8291, in replevin, in case of The Blaisdell Filtration Co. v. M.L Bayard & Co., Inc. Affirmed.
Replevin for machine. Before STERN, P.J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff. Defendant moved for judgment n.o.v. Motion dismissed and judgment entered on the verdict. Defendant appealed.
Error assigned, inter alia, was judgment.
The assignments of error are overruled and the judgment is affirmed.
Abraham Wernick, with him Sachs & Sachs, for appellant.
Philip H. Strubing, with him Robert F. Irwin, Jr., for appellee.
Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, DREW and LINN, JJ.
This action of replevin was brought by plaintiff, Blaisdell Filtration Company, to obtain possession of a filtering machine and certain tools, patterns, office equipment and other personal property held by defendant, M.L. Bayard & Company. The jury found in favor of plaintiff, and from the judgment entered on the verdict defendant appealed.
Plaintiff is the owner of certain patents on machines for the filtering of water for water supply purposes. Defendant acted as the manufacturer of such machines under plaintiff's patents. M. L. Bayard was president of both companies, and under an oral lease plaintiff had its office in the building of defendant, for which a rental of $25 a month was paid. Under a written order from plaintiff, dated July 2, 1926, defendant constructed the filtering machine the possession of which is now in dispute. The agreement provided that the cost of construction, $8,128.24, was to be paid when the machine was completed, but that defendant's profit, which was fixed at 20% of the cost, or $1,625.65, was not to be paid until the machine was sold. The cost of construction was paid in full at the appointed time. There was conflicting testimony as to whether the machine was to remain in defendant's possession until sold.
In March, 1928, Bayard resigned as president of plaintiff company, whereupon plaintiff terminated, or sought to terminate, its tenancy with defendant, and demanded possession of its property. Defendant company refused to surrender anything, claiming a lien on the machine for the unpaid profit and on the other property for unpaid rent. It continued to charge $25 per month as rental of its office space. On July 1, 1928, defendant's claims against plaintiff, except that for the 20% profit, amounted to $554.69. This included $50 for rent from the time of Bayard's resignation, an item which plaintiff insisted it did not owe. On July 7, 1928, plaintiff's attorney sent to defendant's attorneys a check for $554.69 in full settlement of all of defendant's claims, except the item of 20% profit. In the letter accompanying the check it was stated that the check was sent "with the understanding that Mr. Bayard and his company are to permit my client to take away the Blaisdell Tractor washer, all drawings, tracings, blueprints, tools, jigs, fixtures, patterns, correspondence, supplies and office fixtures and all other articles belonging to the Blaisdell Company." On July 9, 1928, defendant's attorneys replied that the check would be accepted in full payment of all claims, but that defendant would not surrender possession of the filtering machine, although plaintiff might remove its other property. This letter was received, but it is admitted that no written answer was ever sent. At the trial, the attorney who had acted for defendant in the matter took the stand and testified that after receiving the letter plaintiff's attorney (who had died before the trial) had telephoned him and agreed to the retention of the check on these terms. The question whether plaintiff, by its attorney, had thus agreed to defendant's terms, was submitted to the jury, and by the verdict in plaintiff's favor it was determined that no such agreement was made. Defendant cashed the check on July 10, 1928, and then refused to surrender possession of any part of the property, without giving any reason for failing to do what had been agreed upon. After further negotiations, which proved fruitless, plaintiff began this action.
The learned trial judge charged the jury that unless they found that there was such a telephone conversation between the attorneys, retention and use of the check by defendant operated, as a matter of law, as an acceptance of the conditions contained in the letter accompanying the check and defendant was bound thereby. Defendant contends that this was error, on the ground that there was no consideration for an agreement on its part to surrender possession of the machine, claiming that plaintiff was legally bound to pay the full amount of the check. While it is true that the performance of an act which one party is legally bound to render to the other party is not legal consideration (Erny v. Sauer, 234 Pa....
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