Spiegelberg v. Karr

• Decision Date: 14 March 1904
• Docket Number: 151-1903
• Citation: 24 Pa.Super. 339
• Parties: Spiegelberg v. Karr, Appellant
• Court: Pennsylvania Superior Court

24 Pa.Super. 339

Spiegelberg v. Karr, Appellant

No. 151-1903

Superior Court of Pennsylvania

March 14, 1904

Argued October 16, 1903

Appeal by defendant, from order of C.P. No. 1, Phila. Co.-1903, No 3,840, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Levi Spiegelberg et al., trading as L. Spiegelberg & Sons, v. Jacob Karr trading as Jacob A. Karr & Company.

Assumpsit for goods sold and delivered.

Rule for judgment for want of a sufficient affidavit of defense.

The facts are stated in the opinion of the Superior Court.

Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

A. J Bryan, with him Jacob Singer and Emanuel Furth, for appellant. -- The contract of sale was executory, and if the goods did not correspond with the sample, defendant had a right to refuse acceptance. The notice the defendant gave to plaintiffs and the offer to return was tantamount to refusal to accept: Fogel v. Brubaker, 122 Pa. 7; Jones v. Jennings Bros. & Co., 186 Pa. 493; Tete Bros. v Eshler, 11 Pa.Super. 224; Baltimore Brick Co. v. Coyle, 18 Pa.Super. 186.

Isaac Hassler, for appellees, cited: Tete Bros. v. Eshler, 11 Pa.Super. 224; Baltimore Brick Co. v. Coyle, 18 Pa.Super. 186; American Watch Tool Co. v. Reed Mfg. Co., 18 Pa.Super. 24.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

ORLADY, J.

This is an action to recover a balance due on a book account for goods, to wit: Miromont madras, sold and delivered to the defendant; the shipments being made on October 28; December 3, December 20, and December 24, 1902. The defense is the merchandise was purchased " upon samples exhibited which consisted of pieces of Miromont Madras Linen of various designs and first quality, and the price agreed to be paid was the prevailing market price for the merchandise of the character designated, and first quality," but that the goods delivered were of second quality and worth about one and one half cents per yard less than the same goods of first quality; and that such " defects are rarely discoverable until the merchandise is manufactured into the finished garments, and then it appears that the same garment contains colored designs of two or more different shades." " In the first quality the colored designs contained therein are bright and of equal and unvarying lustre, while in the second quality the colors are not brought out equally owing to defects in printing." The defendants relying upon the fact that the linen in question was of first quality, began the manufacture thereof into shirts about January, 1903. A large quantity of the linen was cut and manufactured before the defendant could possibly have been aware of the fact that the linen was of second quality, thereby reducing the market value thereof and occasioning a positive loss of $ 1.25 per dozen on 372 dozen shirts. The defendant had on hand 14,096 yards of the linen which he had not used, and they had used in making the shirts, 9,478 yards thereof. A rule for judgment for the portion of the claim as to which the affidavit of defense was deemed insufficient was made absolute for $ 1,302.21, with leave to plaintiff to proceed for the balance. This amount is ascertained as follows: The whole of plaintiff's claim was $ 1,961.96 less $ 300 cash paid on account, or $ 1,661.96. Deducting therefrom one and one half cents per yard on the whole shipment of 23,574 yards, or the sum of $ 353.61, to which is to be added $ 6.14 as freight charges, will leave $ 359.75 as the full amount to which the defendants are entitled as set-off on this phase of the defense.

The defendants urge that the contract was executory and that inasmuch as the goods delivered did not correspond with the samples exhibited, the notice given to the plaintiff in...