Schroeder Bros., Inc. v. Sabelli

• Decision Date: 13 December 1944
• Docket Number: 790
• Parties: Schroeder Bros., Inc., Appellant, v. Sabelli
• Court: Pennsylvania Superior Court

40 A.2d 170

156 Pa.Super. 267

Schroeder Bros., Inc., Appellant, v. Sabelli

No. 790

Superior Court of Pennsylvania

December 13, 1944

October 30, 1944, Argued

Appeal, No. 94, Oct. T., 1944, from order of M. C., Phila Co., July T., 1942, No. 291, in case of Schroeder Bros., Inc. v. G. Sabelli.

Assumpsit. Before Bonnelly, J.

Verdict for defendant on counterclaim. Motion by plaintiff for judgment n. o. v. refused, motion for new trial granted. Plaintiff appealed.

B D. Oliensis, with him Jacob K. Miller and Levi, Mandel & Miller, for appellant.

Ned Stein, for appellee.

Keller P. J., Baldrige, Rhodes, Hirt, and Reno, JJ. (James, J absent).

OPINION

Hirt, J.

Plaintiff sued on an admitted claim for food products sold and delivered. Defendant pleaded a set-off and counterclaim for damages upon a prior purchase of cheese which he alleged did not meet the description of that contract. The verdict was for $ 500 in defendant's favor. Plaintiff moved for judgment n. o. v. on the whole record and for a new trial. Judgment was refused but a new trial was granted on the ground that defendant "did not produce sufficient satisfactory evidence of the extent and amount of the loss" under the applicable measure of damages. The court held that defendant had an enforceable claim against the plaintiff if properly proven. It is true that a trial court has discretionary power and is not bound to enter judgment n. o. v. in every case when convinced that binding instructions should have been given at the trial. Bunn et al. v. Furstein, 153 Pa.Super. 637, 34 A.2d 924. But a party to an action who, as a precaution, moves for a new trial, and a new trial is granted, is not denied an appeal (Act of April 9, 1925, P. L. 221, 12 PS 682) from a resultant order refusing his motion for judgment n. o. v. Giving the defendant the benefit of the most favorable inferences from the testimony, there is nothing in the whole record of this case which gives legal support to defendant's right of action on his counterclaim. The lower court therefore is chargeable with an abuse of discretion in granting a new trial, and with reversible error in refusing plaintiff's motion for judgment n. o. v. March v. Phila. & West Chester Trac. Co., 285 Pa. 413, 132 A. 355; Fornelli v. Penna. R. R. Co., 309 Pa. 365, 164 A. 54.

These are the material facts established by the verdict: Plaintiff, a manufacturer's agent and importer, by written contract, sold to defendant 50 cases of Argentine Romano Cheese, 7 to 8 months old, at $ 53 per 100 kilos, f. o. b Buenos Aires. Upon arrival of the shipment in Philadelphia on August 8, 1941, defendant paid a sight draft drawn upon him by the plaintiff for the full purchase price, in accordance with the terms of the contract. Thereupon, after clearing United States Customs, the entire shipment of 5,703 pounds of cheese was delivered to defendant and was accepted by him. Argentine Romano type cheese was used as a substitute for Italian Romano during the period when exports from Italy were closed. In proper condition, it is a hard dry cheese suitable for grating. Defendant on inspection following delivery discovered that the cheese was not more than five months old and was too fresh; that it had a bad odor and was green with mold. He however, did not then attempt to reject the shipment and request a return of the price paid as he might have done. Foell Packing Co. v. Harris, 127 Pa.Super. 494, 193 A. 152. The sale had been negotiated by one Basso, plaintiff's soliciting or selling agent. Two days after delivery defendant complained to Basso as to the quality of the cheese and was advised by him to put it in cold storage to condition it. Two weeks later upon further complaint from defendant Basso told him that he would report the matter to "Mr. Schroeder" (of plaintiff corporation); shortly thereafter Basso told defendant that Schroeder would not make any adjustment. In March 1942 at Basso's suggestion defendant went to plaintiff's office in New York and renewed his demand on Schroeder for an adjustment as to price. This was refused, on the ground that defendant had not registered his complaint with plaintiff in accordance with the terms and conditions of the written contract. Defendant had not read his contract and did not notify plaintiff, in writing, of his complaint as to variance between what he contracted for and what was delivered, until about eight months after accepting delivery of the shipment. He never offered, in writing or otherwise, to submit the dispute to arbitration. Under "Conditions of Sale" the written contract provided that all claims must be made in writing within eight days after arrival of the shipment and disputes between the parties shall be submitted to arbitration demanded by the buyer within that period of eight days. ^[1]

The above provisions of the contract were reasonably necessary for the protection of plaintiff, characterized in the agreement as "agent of the seller" in Argentina. Although acting for an undisclosed principal (at the trial plaintiff offered to name the shipper but defendant's objection to the offer was sustained) plaintiff on its sight draft collected the full purchase price. Plaintiff was entitled to know promptly before remittance to his principal of any claims chargeable to the shipper. The parties reduced their sale agreement to writing; both are bound by its provisions and defendant is barred by his failure to assert his claim as he was obliged to do under the terms of his contract. Defendant did not make a claim on plaintiff in writing until long after he had accepted the shipment and exercised dominion over the goods and he never made a demand for arbitration. Arbitration is a convenient method of settling disputes both of law and fact with finality between a buyer and a seller of merchandise. Pierce Steel Pile Corp. v. Flannery, 319 Pa. 332, 339, 179 A. 558. And the public policy of this State is to give effect to such agreements. Kuzmen v. Kamien et ux., 139 Pa.Super. 538, 12 A.2d 471. Where the parties to an executory contract agree to submit disputes, arising in the performance of it, to arbitration, they are bound by their contracts (Kaisha,...