Northwestern Consol. Milling Co. v. Rosenberg, 275 F. 878

Northwestern Consol. Milling Co. v. Rosenberg

275 F. 878 | E.D. Pa. | 1921

THOMPSON, District Judge.

[1] In the affidavit of defense, it is set up as a bar to the suit that the alleged contract sued upon is unenforceable, because it is not, based upon a note or memorandum in writing of the contract or sale signed by the party to be charged; i. e., the defendants, or their agents in that behalf, as required by tbe Sales Ad: oí May 19, 1915 (P. L. 513 [Pa. St. 1920, §§ 19049-19726J).

The application for the shipping permit is made to a third party, and not to the plaintiff, and it would require oral evidence to connect it with the unsigned memorandum. Moreover, the unsigned memorandum contemplates on its face that it is to be signed by the purchaser and. returned to the seller, and that it is subject to confirmation by the seller. In their contention that the unsigned memorandum and the signed, shipping permit ate not sufficient in themselves to support an action, the defendants are supported by the authorities. Manufacturers’ Light & Heat Co. v. Lamp, 269 Pa. 517, 112 Atl. 679; Mason-Heflin Coal Co. v. Currie, 270 Pa. 221, 113 Atl. 202.

It is set up as another ground of demurrer that the statement of claim fails to allege delivery either to the defendants or to a carrier within 60 clays as required by the terms of the alleged contract. There are, however, averments in the statement of claim of requests by the defendants granted by the plaintiff for extension of time for payment of the draft, and the plaintiff contends that such extensions at the defendants’ request constitute a waiver on their part, and, through having induced the plaintiff to allow the merchandise to remain in a warehouse for a considerable length of time at their request,, the defendants are estopped from setting up the statute as a defense.

[2] The plaintiff further contends that such conduct on the part of the defendants constituted an acceptance of the merchandise. The statement of claim does not contain sufficient averments either of acceptance or receipt of the goods by the defendants to establish the plaintiff’s contentious as matter of law.

The plaintiff has leave to amend the statement of claim within 15 days; otherwise, judgment will be entered for the defendants.,