40 A.2d 170 | Pa. Super. Ct. | 1944
Argued October 30, 1944.
Plaintiff sued on an admitted claim for food products sold and delivered. Defendant pleaded a set-off and counterclaim for damages upon a prior purchase of cheese which he alleged did not meet the description of that contract. The verdict was for $500 in defendant's favor. Plaintiff moved for judgment n.o.v. on the whole record and for a new trial. Judgment was refused but a new trial was granted on the ground that defendant "did not produce sufficient satisfactory evidence of the extent and amount of the loss" under the applicable measure of damages. The court held that defendant had an enforceable claim against the plaintiff if properly proven. It is true that a trial court has discretionary power and is not bound to enter judgment *270
n.o.v. in every case when convinced that binding instructions should have been given at the trial. Bunn et al. v. Furstein,
These are the material facts established by the verdict: Plaintiff, a manufacturer's agent and importer, by written contract, sold to defendant 50 cases of Argentine Romano Cheese, 7 to 8 months old, at $53 per 100 kilos, f.o.b Buenos Aires. Upon arrival of the shipment in Philadelphia on August 8, 1941, defendant paid a sight draft drawn upon him by the plaintiff for the full purchase price, in accordance with the terms of the contract. Thereupon, after clearing United States Customs, the entire shipment of 5,703 pounds of cheese was delivered to defendant and was accepted by him. Argentine Romano type cheese was used as a substitute for Italian Romano during the period when exports from Italy were closed. In proper condition, it is a hard dry cheese suitable for grating. Defendant on inspection following delivery discovered that the cheese was not more than five months old and was too fresh; that it had a bad odor and was green with mold. He however, did not then attempt to reject the shipment and request a return of the price paid as he might have done. Foell Packing Co. v. Harris,
The above provisions of the contract were reasonably necessary for the protection of plaintiff, characterized in the agreement as "agent of the seller" in Argentina. Although acting for an undisclosed principal (at the trial plaintiff offered to name the shipper but defendant's objection to the offer was sustained) plaintiff on its sight draft collected the full purchase price. Plaintiff was entitled to know promptly before remittance to his principal of any claims chargeable to the shipper. The parties reduced their sale agreement to writing; both are bound by its provisions and defendant is barred by his failure to assert his claim as he was obliged to do under the terms of his contract. Defendant did not make a claim on plaintiff in writing until long after he had accepted the shipment and exercised dominion over the goods and he never made a demand for arbitration. Arbitration is a convenient method of settling disputes both of law and fact with finality between a buyer and a seller of merchandise. PierceSteel Pile Corp. v. Flannery,
Basso was no more than plaintiff's selling agent. He solicited the sale but the contract was entered into by defendant with plaintiff, and was executed on plaintiff's behalf by Henry W. Schroeder. As selling or soliciting agent Basso's authority was limited and he did not have the power to alter or waive the conditions of the written contract. Doll et al. v. Ryder et al.,
Where a contract is in writing and its terms are not in dispute its construction is a matter of law for the court. Hay v. Pgh.Lodge No. 46 L.O.O.M.,
Order reversed and judgment is directed to be entered for plaintiff against the defendant n.o.v. for $730.03 with interest from April 1, 1942.
