383 Pa. 499 | Pa. | 1956
Opinion by
In October, 1950, Plaintiff, National Container Corporation of Pennsylvania, sold to defendant, Regal Corrugated Box Company, Inc., 3,716 corrugated paper sheets invoiced at $3,222.91. The shipment was made in a freight car which was furnished and transported by the Pennsylvania Railroad Company from plaintiff’s warehouse in the Frankford section of Philadelphia to the Regal Company at the Railroad’s Yine Street Freight Station in Philadelphia. Under the contract between plaintiff and Regal Company delivery was to be made “f.o.b. del’d,” the transportation, therefore, being at the risk of the shipper. Regal Company refused to pay for the sheets on the ground that a- large portion of them were wet and almost worthless when the shipment arrived and unusable for the purpose for which they were intended, namely, the manufacture of corrugated paper boxes; it admitted liability only to the extent of $176.70, being the salvage value which it obtained from a resale of the paper and which amount it paid plaintiff. Taking advantage of Pa. R. C. P.
The testimony at the trial centered around three subjects of inquiry: — (1) Were the paper sheets dry when loaded by plaintiff on the car of the Railroad Company; (2) Did they become wet during the course of transportation by reason of some defective condition of the car; (3) Were the sheets in fact dry when they arrived but became wet during the process of the unloading of the car by Regal Company’s employes? As to the first question, there was testimony by plaintiff that the paper was dry and in good condition when loaded at the point of shipment. As to the second question, there was evidence pro and con, there being some testimony that the roof and sides of the car were possibly leaky, and other testimony that on a thorough inspection it was found that the car was free from any defects whatever. As to the third question, there was testimony on the part of Regal Company that when the door of the ear was opened the sheets in view were wet,
As far as the defendant Railroad Company is concerned there is no reason whatever why it should not be allowed to retain the verdict in its favor which the jury rendered. There is no complaint in the record of any error in the trial so far as the liability of the Railroad Company was concerned. Nor has plaintiff appealed from the judgment in the latter’s favor.
The real questions in the case arise in connection with plaintiff’s suit against Regal Company to recover the purchase price. If the sheets arrived in good condition Regal Company obviously is obliged to pay for them; if, on the other hand, they were wet and damaged upon arrival and Regal Company gave plaintiff timely notice of that fact it is relieved from its obligation because the shipment was to be f.o.b. delivered.
Section 49 of The Sales Act provides that “if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty, within a reasonable time after the buyer knows or ought to know of such breach, the seller shall not be liable therefor.” If the facts are undisputed the question of what is a reasonable time for giving notice of breach of warranty is one of law for the court; otherwise it is a question of fact for the jury: United States Gypsum Company v. Birdsboro Steel Foundry & Machine Company, 160 Pa. Superior Ct. 548, 559, 52 A. 2d 344, 350, and cases there cited. Did Regal Company give plaintiff proper notice? Its president testified that immediately after the car was opened and the sheets found to be in a wet and damaged condition he telephoned to plaintiff and notified it of that fact; he said that he spoke either to a Mr. Weiss who was the office manager or to a Mr. Rosenfeld who was the general manager. Nearly four months later plaintiff received written notice from Regal Company’s insurance adjuster of Regal Company’s claim, but the trial judge properly told the jury that that notice would have been too late. The court erred, however, in stating to the jury that his recollection was “that no authentic notice was ever given to the shipper that the goods were damaged in so far as the defendant Regal is concerned, until Regal’s insurance adjuster notified the plaintiff that the goods were in fact no good, they were damaged, and that they were not going to accept them.” It is true that the court added that the jury would have to use its own recollection but it certainly worked a great injustice to Regal Company that, on this vital question, not only did the trial judge fail to mention the alleged telephone notice from the presi
It appears that another important error committed by the court was in a repeated instruction to the jury that they could find in favor of the plaintiff against both defendants jointly. Obviously the case was not one of joint tortfeasors and it was impossible that both defendants should have been liable because, if the Railroad Company had negligently allowed the goods to be damaged Regal Company would not have been obligated to pay for them since the transportation was at plaintiff's risk and the sole liability would have rested upon the Railroad Company; if, on the other hand, the sheets were in good condition when delivered Regal Company would have been liable to plaintiff and the Railroad Company would not have been.
For the reasons thus stated we are of opinion that Regal Company is entitled to a new trial in the plaintiff's action against it. It is not entitled, however, to judgment n.o.v. on the alleged ground that there had been an accord and satisfaction by reason of the fact that, having marked on two or three of the checks it sent to plaintiff in payment of their running account: “The endorsement of this check is an acknowledgment that all charges to and including this date are paid in full,” or similar phraseology, plaintiff nevertheless endorsed and deposited them. The payments thus made by Regal Company were all for other merchandise than the shipment here involved and were admittedly due and owing; therefore they did not represent any compromise or settlement of the sales transaction here in litigation but merely a total denial of liability therefor. “The payment by a debtor, and acceptance by the ■creditor, of a sum which is conceded by the debtor to be due and payable, or as to which there is no dispute
At the retrial of the case between' plaintiff and the defendant Regal Company the sole issues will be (1) were the paper sheets wet and damaged on arrival at the point of delivery, and (2) if so, did Regal Company give plaintiff adequate and timely notice of their defective condition?
Judgment of plaintiff against defendant Regal Corrugated Bos Company, Inc., reversed and new trial granted.