Julian C. Cohen Salvage Corp. v. Eastern Elec. Sales Co.

• Decision Date: 15 January 1965
• Citation: 206 A.2d 331,205 Pa.Super. 26
• Parties: , 2 UCC Rep.Serv. 432 JULIAN C. COHEN SALVAGE CORP. v. EASTERN ELECTRIC SALES CO., Appellant.
• Court: Pennsylvania Superior Court

Page 331

206 A.2d 331

205 Pa.Super. 26, 2 UCC Rep.Serv. 432

JULIAN C. COHEN SALVAGE CORP. v. EASTERN ELECTRIC SALES CO., Appellant.

Superior Court of Pennsylvania.

Jan. 15, 1965.

A. Martin Herring, Teitelman & Herring, Philadelphia, for appellant.

Samuel Kravitz, Ronald I. Kravitz, Philadelphia, for appellee.

Before ERVIN, Acting P. J., and WRIGHT, WATKINS, MONTGOMERY, and FLOOD, JJ.

PER CURIAM.

The Judgment of the Court of Common Pleas No. 1 of Philadelphia County is affirmed on the opinion of Judge ETHAN ALLEN DOTY for the court below.

RHODES, P. J., and WOODSIDE, J., absent.

The opinion of Judge ETHAN ALLEN DOTY follows:

This action in assumpsit is presently before the court on defendant's exceptions to the verdict in favor of the plaintiff rendered by the Trial Judge sitting without a jury.

After a careful consideration of the record and the applicable law, we are of the opinion that defendant's exceptions must be dismissed.

The undisputed facts are as follows:

In the latter part of June, 1963, plaintiff, located in Bladensburg, Maryland, and defendant, located in Philadelphia, both acting by a duly authorized agent, had a telephone conversation in which plaintiff advised defendant that it had a quantity of electric cable for sale. Arrangements were made for defendant to send one of its employees to Bladensburg, Maryland to examine the cable. After this employee examined the cable and returned to Philadelphia, another oral conversation transpired as a result of which plaintiff shipped the cable, weighing 36,440 pounds, to defendant in Philadelphia. The cable was run off plaintiff's reels to defendant's reels, and was taken by defendant's employees and placed in defendant's warehouse, where it still remains.

There is a sharp dispute as to the contents of the two telephone conversations between the parties, particularly the second conversation. Plaintiff alleges that the parties entered into a valid and binding contract in the second conversation, the plaintiff agreeing to sell and the defendant agreeing to buy the cable. The price was to be 21 cents per pound, except that defendant was to pay 24 cents per pound for the copper content only for those pieces of cable less than 50 feet in length. Plaintiff also alleges that the shipping costs were to be borne equally by the parties.

On the other hand defendant contends that there was no agreement to purchase the cable but that the parties agreed that plaintiff was to ship 36,440 pounds of cable from Bladensburg, Maryland, to Philadelphia. Defendant was then to examine the cable and purchase only that quantity it determined it could use. Defendant's president, who had the telephone conversation in question, did admit that the price was to be as alleged by plaintiff and also admitted that the shipping costs were to be paid equally.

The plaintiff brought this action in assumpsit for the cable allegedly sold and delivered. The defendant's position at trial was two-fold: (1) there was no contract between the parties, and (2) even if there was a contract it is unenforceable because of the statute of frauds.

The first defense has been virtually abandoned by the defendant in its brief and oral argument in support of its exceptions. The defense is a factual one and the Trial Judge, after seeing the witnesses and hearing the testimony is convinced that the parties did enter into a contract for the sale of the cable. Moreover, the surrounding facts and circumstances give credence to this. It is hardly conceivable, as defendant would have the court believe, that after two telephone conversations and inspection by the defendant's employees at plaintiff's warehouse, the plaintiff would ship 36,440 pounds of cable from Maryland to Philadelphia without a firm sale, and with nothing even arranged as to when or how, or at whose cost, the goods were to be returned in the event of rejection by defendant, and without any agreement or understanding concerning what other disposition would be made of the cable, or any part of it, which defendant would reject.

In addition, defendant never did notify plaintiff of its rejection of the cable until approximately one month after it had admittedly received it, and then only in response to a letter received from plaintiff's counsel demanding payment. It is also significant that defendant's agent was given a full opportunity to inspect the cable in plaintiff's warehouse. He admitted on cross-examination that he never complained to plaintiff that he did not have such an opportunity. He also acknowledged that he was not pressured or hurried and was given all the time he wanted to make that inspection. Under these circumstances no useful purpose could have been served by a second inspection in Philadelphia. This also gives credence to plaintiff's version of the facts.

Defendant introduced into evidence its firm purchase order on which appeared, inter alia, a date, June 29, 1963, and a statement that defendant would only pay for cable it could use. Defendant's president testified that he sent this form to plaintiff. However, this form was not addressed correctly, but was addressed to 'Julian Costen.' It is undisputed that there is no such person involved in this case. Therefore, since this purchase order was not addressed correctly there can be no presumption that it was ever received by plaintiff. (See, e. g., Cameron Estate, 388 Pa. 25, 130 A.2d 173 (1957); Higgins Lumber Company v. Marucca, 159 Pa. Super. 405, 48 A.2d 48 (1946).) There is no evidence that the letter was ever received by the plaintiff. Therefore, it can have no probative value.

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