Runco v. Brockway Motor Company, Inc.

• Decision Date: 14 January 1949
• Citation: 63 A.2d 397,164 Pa.Super. 240
• Parties: Runco, Appellant, v. Brockway Motor Company, Inc
• Court: Pennsylvania Superior Court

63 A.2d 397

164 Pa.Super. 240

Runco, Appellant, v. Brockway Motor Company, Inc

Superior Court of Pennsylvania

January 14, 1949

Argued November 8, 1948

Appeal, No. 193, April T., 1948, from judgment of Common Pleas, Cambria Co., June T., 1943, No. 295, in case of Tony Runco v. Brockway Motor Company, Inc.

Assumpsit. Before McKenrick, J.

Verdict for plaintiff; judgment n. o. v. entered for defendant. Plaintiff appealed.

Samuel R. Di Francesco, for appellant.

Philip N. Shettig, with him Coleman Harrison and Thomas A. Swope, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Fine, JJ.

OPINION

HIRT J.

On March 27, 1941, plaintiff Tony Runco agreed to buy a Brockway Tractor, Model No. 156, manufactured by the defendant, Brockway Motor Company, Inc. The sales price of the tractor was $ 3,740; accessories and additional equipment increased the total consideration to be paid by Runco to $ 5,153. The order was signed by plaintiff and was accepted by A. E. Webb as "salesman", "Subject to the conditions printed on the Reverse Side Hereof". Prior to delivery Runco had paid him a total of $ 1,025 in cash and was allowed $ 700 on the trade-in of a Dodge truck as part payment of the purchase price. In addition, Runco signed and delivered a series of eighteen notes for $ 210 each payable to Baserman Garage at intervals of one month beginning June 23, 1941. These notes were secured by a conditional sales contract executed by Runco, and by A. J. Baserman who was a dealer under a consignment contract with defendant. The tractor, referred to as "the chattel" was identified in the conditional sales contract, and the notes were listed as to amounts and due dates. It was therein agreed "that title to said chattel does not by these presents pass to Buyer, but remains in Seller until the purchase price (whether evidenced by notes or otherwise, including any modifications or extensions) . . . and all other sums which may be or become due from the Buyer to the Seller . . . shall have been fully paid." The agreement contained the usual provision for repossession and retention of the chattel by the seller "upon any default in payment, or upon breach of any condition or covenant herein made by the Buyer". The Conditional Sales Agreement was assigned, and Runco's notes were endorsed over, to the Brockway Motor Company, Inc., by Baserman, on the date of their execution. Only the first three notes which matured in June, July and August 1941, were paid. Prior to March 9, 1942, Runco had delivered the tractor to Brockway Motor Company, Inc., for repairs. It made a charge of $ 380.49 for the parts and labor supplied which Runco failed to pay. He then was in default also in the payment of a number of his notes then past due, and on these grounds the defendant company notified him that it had repossessed the tractor under its reserved title in the conditional sales contract. Upon plaintiff's neglect to pay the amount then owing, on notice, the defendant sold the tractor and retained the proceeds. Plaintiff brought this action to recover damages upon an alleged breach of a warranty of the tractor by the defendant company. The defense was that there was no privity of contract between the Brockway company and plaintiff. This defendant disclaimed any responsibility to the plaintiff. The jury found in favor of plaintiff for $ 2,355, the total amount paid or credited to him on the purchase price of the tractor. The trial judge reserved the question of law as to defendant's liability and subsequently, in the order appealed from, the court made absolute defendant's rule for judgment n. o. v. The judgment will be affirmed.

The "New Truck Order" which evidenced the transaction was on a printed form, obviously supplied by the defendant manufacturer. It contains the following warranty: "We warrant each new motor truck or bus manufactured by us to be free from defects in material and workmanship under normal use and service for a period of ninety days after date the original purchaser puts the truck or bus into use, or during the period of the first five thousand miles operation if such mileage accumulates prior to the expiration of the ninety day period, our obligation under this warranty being limited to making good, at our factory, any part or parts thereof which shall be returned to us with transportation charges prepaid, and which our examination shall disclose to our satisfactionto have been thus defective." (Emphasis added). This became the defendant's warranty, and responsibility under it could not be shifted to Baserman Garage. Webb was employed by defendant in its Pittsburgh Branch office and he acted for defendant in making the sale. He received the hand payments from Runco. A receipt for one payment of $ 550 was signed by him "for Brockway Motor Co." Baserman received none of the down payments. The relationship between defendant and Baserman as dealer was that of consignor and consignee, under a written contract. But the tractor in question was never consigned to Baserman nor was it ever in his possession. Webb sold the tractor, and delivered it to Runco directly from defendant's factory. The "New Truck Order" provided that it ". . . shall not be binding upon Vendor until accepted by Vendor in writing hereon, by its authorized agent . . ." Defendant was the Vendor and Webb its authorized agent; this was established upon sufficient evidence by the verdict of the jury.

Although Baserman...