Levy & Koplin v. Queen Co.

73 Pa. Super. 425 | Pa. Super. Ct. | 1920

Opinion by

Henderson, J.,

The plaintiffs claimed a balance on an account due them from the defendant for merchandise sold. The account was sufficiently proved and a prima facie case made out. The defense set up was that some of the items of merchandise had been returned because they were damaged in transit, and that a check had been forwarded to the plaintiffs for the amount of the bill less the value of the damaged goods returned, which check had endorsed thereon the following: “This check is in full payment for the above stated bills; no receipt required.” This check as alleged was accepted by the plaintiffs, as a result of which there was an accord and satisfaction. With respect to another part of the account, the defense was that the merchandise was not shipped in time and was therefore refused. The case was tried without a jury, and the assignments of error relate to the refusal of the court to find for the defendant and to grant a new trial. It appears from an examination of the evidence that the questions involved were questions of fact to be disposed of by the court. The evidence shows that the check referred to was returned by the plaintiffs to the defendant more than once. Under date of January 16, 1908, they wrote to the defendant: “We are again returning your check for $187.58 sent us in settlement of your Youngstown account, and would again remind you, you might save unnecessary loss of time and expense of postage, by not returning same to us once more. Under no consideration will we accept this remittance as in full payment of your account unless accompanied by an additional check for the difference of $26.50 still due us.” It does not appear how the check again came into the plaintiffs’ possession, but it is clearly shown that the defendant was notified that the check would not be accepted if it was returned afterward with the condition made by the' defendant. If it was again returned to the plaintiffs, it was presumably sent on the terms contained in the letter referred to. With respect to the item for merchandise refused by the defendant because it was not delivered in time, the plaintiffs’ evidence tends to show that a delay in shipment was requested by defendant, and that the shipment was made in exact compliance with the defendant’s order. This dispute was resolved in favor of the plaintiffs by the trial court, and properly so in the view which we take of the evidence. It also appears that there was a delay of nearly four months between the time the goods were received and the defendant’s notice that they were refused. No explanation of this long delay was made, and the court might well have disposed of this part of the case on the defendant’s delay in rejecting the merchandise. The evidence does not disclose any reason which should have moved the court to grant a new trial.

The assignments are overruled and the judgment affirmed.