East Coast Fi. Corp. v. Linck
| Decision Date | 05 March 1932 |
| Docket Number | 369-1931 |
| Citation | 159 A. 468,104 Pa.Super. 518 |
| Parties | East Coast Fi. Corp., Appellant, v. Linck |
| Court | Pennsylvania Superior Court |
Argued October 15, 1931
Appeal by plaintiff from order of C. P., No. 5, Philadelphia County September T., 1930, No. 8891, in the case of East Coast Finance Corporation v. J. Edward Linck, trading as The J Edward Linck Sheet Metal Works.
Rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit on a trade acceptance. Before Smith P. J.
The facts are stated in the opinion of the Superior Court.
The court discharged the rule. Plaintiff appealed.
Error assigned, among others, was the order of court.
Reversed.
J. Morris Yeakle, for appellant.
Cecil P. Harvey, of Horenstein, Feldman and Harvey, for appellee.
Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham and Baldrige, JJ.
This suit was brought by the endorsee upon a trade acceptance given in payment of goods sold and delivered by a New York house to the defendant, through a salesman. There is no dispute as to the giving of the order, the acceptance thereof, the delivery and receipt of the merchandise and the giving of the trade acceptance.
The defense contained in the affidavit which defendant filed is that the consideration for the giving of the acceptance had failed and that the plaintiff, the endorsee, did not acquire the trade acceptance for a good and valuable consideration before maturity and is not a bona fide holder and that the real plaintiff in the case is the Delta Asbestos Company to whom the trade acceptance was originally given; that the salesman who obtained the contract made certain false and fraudulent representations and warranties which were contained in a catalogue or pamphlet prepared by the Delta Asbestos Company and induced him to make the purchase upon the assumption that the statements in said catalogue were true and relying upon such statements, he signed the contract although the statements were false and fraudulent; that the article in question was purchased before an opportunity for inspection was afforded with an express warranty as to the efficiency of the preparation when applied for its particular uses. The defendant claims damages ensuing for breach of warranty far in excess of the claim of the plaintiff and asserts that he owes the plaintiff nothing.
The plaintiff entered a rule for judgment for want of a sufficient affidavit of defense. The court in its opinion refers to the fact that the defendant denies that the plaintiff was a holder of the acceptance in due course and that the affidavit alleges that the goods were not as represented and did not come up to the warranties contained in plaintiff's catalogue, but bases his refusal to enter judgment on the specific reason that the order had not been accepted by the plaintiff and therefore the defendant was not bound by any clause contained in the contract and can raise the question of the quality of the goods and the consideration for the transfer of the acceptance. The court was mistaken in the assumption that the order of acceptance had not been accepted by the plaintiff company and its attention being called to an admission of that fact in the pleadings, justified its continued refusal to enter judgment because the terms of purchase specifically provides, "This order is subject to acceptance at the company's office at New York, N. Y.," and that there is nothing in the statement of claim showing that this had been done. This point was not raised in the affidavit of defense and was not material to the issue, for if the trade acceptance was given and the order accepted, it did not matter in what particular place the order was accepted and if it did, the fact remains that the acceptance of the order shown as an exhibit attached to plaintiff's statement bears the address of the vendor in New York City.
The real question in the case is whether under the terms of the order, the defendant can interject the collateral agreement and warranties alleged to have been agreed to by the agent when the order was given. The contract provides, There is no allegation that the warranties were omitted from the contract by fraud, accident or mistake. If there were representations as to quality of goods, the principle for...
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