79 Pa. Super. 473 | Pa. Super. Ct. | 1922
Opinion by
Defendant is a dealer in groceries in the City of Pittsburgh, and plaintiff is a manufacturer of window signs. On September 23, 1918, defendant' gave the following order to plaintiff:
“Order No. 1321 Date Sept. 23,1918.
“The Meyercord Co. (Inc.)
“Chicago, Ills. U. S. A.
“Sold to P. H. Butler Co.,
“At Pittsburgh, Pa.
“Ship via Express When At once.
“Terms 1% cash 10 days or 30 days net from date of invoice F. O. B. Chicago.
“As it is impossible to make the exact quantity, it is agreed that an overage or shortage, not to exceed 10%, shall be accepted as filling this contract. All contracts are taken contingent upon strikes and accidents beyond our control.
“Not subject to countermand.
“Quantity Description
“125 Window signs as per sketch ‘Fine Groceries’
“75 Dittoe— ‘Teas & Coffees’
“At 1.35 per sign
“P. H. Butler Co.
“PHC Coffee
“Accepted “Salesman.”
On September 26, 1918, plaintiffs wrote defendant acknowledging receipt of the above order, and stating that it would have prompt attention. On November 22, 1918, plaintiffs delivered to the Chicago office of the American Express Company for transportation to defendant 180 window signs marked “Fine groceries,” and 117 window signs marked “Teas & Coffees.” The signs were never delivered to defendant by the express company. Claim was made on defendant for the price of the 297 window signs, which amounted to $495. Defendant
Appellant contends that (1) the delivery of the signs to the express company was a delivery to defendant; that (2) it was defendant’s duty to accept or reject the signs delivered to the express company; that (3) defendant was bound to plead the overage shipment, and that it was too late to raise the question on the argument of the motion for judgment n. o. v., and that (4) judgment n. o. v. cannot be used to take away the right of rebuttal. We will discuss propositions one and two together. Paragraph 1 of section 46 of the Sales Act (1915 P. L. 543) provides as follows: “Where, in pursuance of a contract to sell or a sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is deemed to be a delivery of the goods to the buyer, except in the case provided for in section nineteen, rule five, or unless a contrary intent appears.” Section nineteen, rule five has no application here and no contrary intent appears. This section is merely declaratory of the law as decided by our courts prior to the passage of the act. Paragraph 2 of section 44 of the same act provides as follows: “Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods, so delivered, he must pay for them at the contract rate.” This also is declaratory of the law as found in the decisions in this jurisdiction and most others. These two sections of the act should be
As to plaintiff’s contention that defendant was bound to plead the overage shipment, and that it was too late to raise the question on the motion for judgment n. o. v., the obvious answer is that the delivery of the signs to defendant was part of plaintiff’s case and the delivery proved must be in accordance with the terms of the contract of sale. Such a delivery was not proved. On the other hand, it was admitted on the record at the trial that goods in excess of the amount ordered were shipped from Chicago, and that they were not delivered. It was entirely proper for defendant to take advantage of the insufficiency of plaintiff’s case by presenting a point for binding instruction. It was not required to allege or prove overage or any other matter as a reason for refusal to pay for the signs.
The judgment is affirmed.