Philip J. Ritter Conserve Co. v. Kolb, 62 Pa. Super. 296

Philip J. Ritter Conserve Co. v. Kolb

62 Pa. Super. 296 | Pa. Super. Ct. | 1916

Opinion by

Orlady, P. J.,

On June 21, 1908, the president of the defendant com*298pany, gave to a broker (Franstadter) an order in writing for 50,000 tin whistles to be made similar to a sample furnished and shipped to Kolb’s Bakeries, 10th and Beed streets, Philadelphia, “soon as possible.” Terms cash. This order was transferred to the plaintiff company to be performed, and the defendant was so notified. The plaintiff proceeded at once to assemble the necessary dies and materials, which required about four weeks before any could be manufactured, and when the whistles were completed they were tendered to the defendant on August 31st, and refused. They were of a design and color, with an advertisement of the defendant printed on the metal, so as to make them of no value to any other person. The defense was that these whistles were intended for a special advertisement on July 16th, and not being delivered at that time were useless to the defendant and hence were rejected.

The only direct communication shown between the parties to this suit occurred about three weeks after the order was given, when a ’phone conversation was held between Mr. Kolb and a representative (Mr. Ritter) of the plaintiff, in which, according to Mr. Kolb, Ritter stated — “that we would receive them in time” but Ritter’s testimony was that he said, “Mr. Kolb, it is physically impossible to make delivery at that date.” The dispute is circumscribed by this ’phone conversation, and could only be disposed of by a jury. The defendant further complains that the court excluded an offer to prove that the defendant at the time the order was given, was conducting a newspaper advertising campaign, having for its object the full distribution of these whistles on July 16th, but there is no suggestion in the record that this important feature of the contract was ever brought to the notice of the plaintiff, so as to affect the terms of the written order as to delivery — soon as possible — and the objection as made by the plaintiff was properly sustained. Nor was there any error in the plaintiff being permitted to show that it proceeded promptly, and used *299all available methods to complete the order within a reasonable time. No specific date being fixed in the order, the jury was the proper tribunal to decide whether the plaintiff proceeded with diligence and in good faith. This question was fairly submitted by the trial judge in saying — “It is a simple question for you to determine from the testimony, whether or not it was agreed that these whistles were to be delivered on or before July 16, 1908. If they were, your verdict should be for the defendant. ’ If there was no time fixed at all, then, if you believe they were gotten out and offered within a reasonable time, and refused, and that a total loss came to the plaintiff thereby, your verdict should be for the plain, tiff.”

The judgment is affirmed.