43 Pa. Super. 297 | Pa. Super. Ct. | 1910
Opinion by
There is no dispute in regard to the terms of the contract between the plaintiffs and the defendants. The evidence shows a sale of 500 boxes of June butter for $5,750. The boxes were in the plaintiffs’ warehouse and were set apart and put in one of their cold storage rooms in accordance with the contract, the defendants to withdraw butter from time to time as their trade demanded. At the same time a storage receipt was given by the plaintiffs and accepted by the defendants in which the butter was described as “Lot 5216” in the storage room at 263 South Second street. When the butter was thus set apart and the storage receipt accepted by the defendants the title passed to the latter and the transaction was in effect a delivery of the butter subject to the lien of the vendor for the price and for storage charges. • The appropriation by the vendor was equivalent to a delivery to the vendee and the assent of the vendee to take the property as shown by the acceptance of the warehouse receipt was equivalent to taking possession: 3 Sutherland on Damages, sec. 644. The defense to the action is that the plaintiffs rescinded the contract. This claim of rescission is based on a letter from the plaintiffs dated August 21, 1905, in which they called for a settlement for the butter. The letter contained this statement: “If we do not hear from you by Wednesday we shall cancel the charge.” On the twenty-ninth of the same month the plaintiffs wrote to the defendants stating that they were waiting for an answer to their letter of the twenty-first relative to the amount due on the contract and urging the defendants to send a check by return mail. No reply was made to either of these letters and on September 18, 1905, a third letter was sent by the plaintiffs requesting the defendants to state whether they intended to make settlement of the bill. On the following day the defendants wrote to the plaintiffs stat
The judgment is affirmed.