Appeal 35 | Pa. Super. Ct. | Mar 6, 1928
Argued March 6, 1928. On May 18, 1923, the defendant telegraphed the plaintiff asking how soon it could ship twenty-four spur gears, catalogue numbers 3029 and 1866, twelve of each. The plaintiff replied the same day, that it could ship the gears specified in from two to three weeks if ordered at once. The next day the defendant entered *219 its order by wire, and asked the plaintiff to ship two pairs by express at the earliest possible moment; and on May 21 confirmed the order by letter, giving explicit directions as to the size and style of gears wanted, asking for the shipment of two pairs by express as early as possible, and stating its understanding that complete shipment would be made in about three weeks. On June 21, defendant wrote plaintiff referring to its order above and to plaintiff's telegram promising complete shipment in from two to three weeks, and its own request that two pairs be shipped by express as early as possible, and said, "We have received no notification of shipment and write to inquire what we may expect." Plaintiff answered four days later, regretting that shipment of two pairs of gears had not yet gone forward, but stating, "However, we expect to send you two pair on Wednesday of this week [June 27], the balance of the order to follow on July 2d." On June 28, defendant wired plaintiff "Unable to wait for gears on order 1074. Cancel," to which plaintiff wired back the same day, "Unable to accept cancellation as order is practically finished and will be shipped complete Saturday June 30th."
On April 30, 1924, the plaintiff brought this action in assumpsit for the purchase price of the gears. We need not decide whether the learned court below was right in holding that, under the correspondence above outlined, the defendant had no right to rescind the contract because of delay in delivery; for we are of opinion that the finding of the judge, sitting without a jury, in favor of the defendant was, in any event, justified on the ground taken by him, viz., lack of competent evidence to prove that the gears were finished and delivered, or tendered for delivery to defendant, and a refusal by defendant to accept such delivery, sufficient to support the present action.
There is no explicit evidence in the case showing *220 when the entire order of gears was finished and completed, or in fact, that they were ever finished and completed. The deposition of the salesman offered in evidence clearly relates to the general process of making and shipping gears, not to the manufacture and shipment of these particular gears. The deposition of the schedule supervisor is not clear as to whether he refers to some of the gears whose making he witnessed, or to the complete order. Neither of the witnesses attempted to say when the entire order was completed and ready for delivery, or when they were shipped or offered for delivery to the defendant. It certainly was not shown that two pairs of gears were sent by express on June 27, as per letter of June 25, or that the complete shipment was made on June 30, as per telegram of June 28. There was no communication shown to have been received from defendant, after plaintiff's telegram of June 28, refusing to accept the gears or absolving plaintiff of the duty of at least offering a delivery. The action was for the full purchase price under section 63 (3) of the Sales Act of 1915 (p. 561), but there was no proof of an offer to deliver by plaintiff, closely following its telegram of June 28, a refusal to receive by the defendant, and a notification that the goods were thereafter held by the plaintiff as bailee for the defendant, as required by the third paragraph of that section. If the gears were not practically finished when defendant cancelled the order, and labor or expense to a material amount were required to complete them, the action should have been for damages for breach of contract under section 64 (4) of the Sales Act and not for the purchase price under section 63.
The lack of oral evidence above referred to was not supplied by the pleadings. Section 12 of the plaintiff's statement and the corresponding paragraph of the affidavit of defense were not offered in evidence, or brought to the attention of the judge sitting without *221
a jury, in any of the modes pointed out as proper by the Chief Justice in Buehler v. U.S. Fashion Plate Co.,
We are of opinion that the ruling of the court below was in accord with the decisions of this court (American Steel Foundries v. Metal Products Co.,
Judgment affirmed.