279 Pa. 177 | Pa. | 1924
Opinion by
Plaintiff is a junk dealer at Butler and defendant a corporation in business at Franklin. The action is based on defendant’s alleged breach of a contract for the purchase of a quantity of scrap iron. The trial judge directed a verdict for defendant and, from judgment entered thereon, plaintiff brought this appeal. We are satisfied from an examination of the record that the case was for the jury. Plaintiff’s averment that on March 12, 1920, he contracted orally to sell the defendant five hundred tons of number one machinery scrap, at $42 a ton, is supported by his testimony and to some extent by the correspondence, while denied by evidence for the defendant. That question was undoubtedly for the jury, but the trial judge held defendant relieved from the contract, if made, by reason of plaintiff’s failure to deliver or tender delivery of the scrap within the time fixed by the contract. This conclusion overlooks the evidence tending to show that defendant was responsible for such alleged failure. Defendant did not have storage for the entire amount at any one time and plaintiff’s version of the contract is that the scrap was to be in car lots, from time to time as requested by defendant, and to be completed within three or four months. At first a sample car was shipped and accepted and there
The judgment is reversed and a venire facias de novo awarded.