DocketNumber: Appeal, 138
Citation Numbers: 192 A. 679, 327 Pa. 10, 1937 Pa. LEXIS 531
Judges: Schaffer, Maxey, Linn, Stern, Barnes
Filed Date: 5/10/1937
Status: Precedential
Modified Date: 10/19/2024
Plaintiff and defendant entered into two contracts; the first, dated August 16, 1933, was an agreement on the part of plaintiff to sell, and of defendant to buy, "100 Truscon President one-half kegs size beer barrels." The second, dated September 7, 1933, was a similar agreement for 1,000 "President beer kegs — 1/2 barrel size." The hundred barrels under the first contract were shipped on September 7 and received on September 12; 497 barrels under the second contract were shipped on *Page 12 September 12 and received on September 16; 2 more were shipped on September 29. The suit in the present case is to recover the purchase price of these 599 barrels. The defense was breach of warranties. The jury found for defendant, but the court below granted plaintiff's motion for judgment n. o. v., resulting in the present appeal by defendant.
The controversy in regard to the second contract arises from express warranties therein that "The Truscon Steel Company guarantees these kegs to take — and keep pitch as well — or better — than a wooden keg, and will give the above company, Fuhrmann Schmidt Brewing Co. 30 days, from date of shipment, to be so convinced. . . . These kegs are guaranteed to be of sufficient strength to meet the usual conditions of wear to which a beer keg is subjected."
Upon arrival of the hundred barrels under the first contract, defendant tested a number of them, and claims to have found that some did not properly retain the pitch, several leaked, and the bung and taps flew out of some which had been filled with beer, showing they were too weak for use. On October 20, 1933, defendant wrote to plaintiff complaining of the kegs, stating that they could not possibly be used, and requesting shipping directions for their disposition. This letter was evidently intended to cover the barrels shipped under both contracts; defendant had not tested any of those received under the second contract, but — it may be assumed for present purposes — was justified in believing they would have shown similar defects.
The controlling legal question is whether notice was given in sufficient time to make the breach of warranties available as a defense to an action for the purchase price. Defendant had thirty days from date of shipment to be "convinced" that the kegs would keep the pitch as guaranteed. The date of shipment under the second contract being September 12, the thirty-day period expired on October 12. It is plaintiff's contention *Page 13
that within the thirty days defendant was obliged not only to satisfy itself in regard to this guaranty but also to give notice of rejection; in support of this position plaintiff invokes the case of Butler v. School District,
Where, as here, the facts are undisputed and the inference plain, the determination of what constitutes a reasonable time is a question of law for the court: Wright v. General CarbonicCo.,
In Wolstenholme v. Randall,
As to the warranty that the kegs would be of sufficient strength to meet the usual conditions of wear, no definite period was stipulated within which the purchaser was obliged to ascertain whether it had been breached. Plaintiff contends that this warranty is covered by a clause of the contract which provided that no claims for improper or defective material would be recognized unless written notice thereof were given to plaintiff within five days from receipt of the shipment. Defendant would seem to be justified in its contention that that clause was not intended to apply to beer kegs, but was merely part of a printed form used by plaintiff in connection with the sale and delivery of steel products for buildings, and therefore, in the absence of any specified period, defendant had a reasonable time in which to discover defects and notify plaintiff of rejection. In our opinion, however, the 38 days' time which elapsed from the making of the shipment until notice was given was wholly unreasonable, because the breach of warranty could have been, and in fact was, ascertained much more quickly, and there was further unnecessary delay in notification. *Page 16
As far as the first contract, that of August 16, is concerned, there were no express warranties at all. Plaintiff maintains that since the goods were sold under a trade name ("President"), section 15 of the Sales Act of 1915, P. L. 543, subdivision fourth, precludes any implied warranty as to fitness for a particular purpose: Madison-Kipp Corporation v.Price Battery Corporation,
Judgment affirmed. *Page 17
Madison-Kipp Corp. v. Price Battery Corp. , 311 Pa. 22 ( 1933 )
Wolstenholme, Inc. v. Jos. Randall Bro., Inc. , 295 Pa. 131 ( 1928 )
Hobart Manufacturing Co. v. Rodziewicz , 125 Pa. Super. 240 ( 1936 )
Dietrich v. United States Shipping Board Emergency Fleet ... , 9 F.2d 733 ( 1925 )
Barrett Co. v. Panther Rubber Mfg. Co. , 24 F.2d 329 ( 1928 )
Fox v. Davey Compressor Co. , 318 Pa. 331 ( 1935 )
Hill & MacMillan, Inc. v. Taylor , 304 Pa. 18 ( 1931 )
Industrial Rayon Corp. v. Caplan , 125 Pa. Super. 414 ( 1936 )
Frantz Equip. Co. v. the Leo Butler Co. , 370 Pa. 459 ( 1952 )
Texas Motorcoaches, Inc. v. A. C. F. Motors Co. , 154 F.2d 91 ( 1946 )
Comfort Springs Corp. v. Allancraft Furniture Shop, Inc. , 165 Pa. Super. 303 ( 1949 )
Commonwealth Financial Systems, Inc. v. Smith , 2011 Pa. Super. 30 ( 2011 )
United States Gypsum Co. v. Birdsboro Steel Foundry & ... , 160 Pa. Super. 548 ( 1947 )
Victorson v. Albert M. Green Hosiery Mills, Inc. , 202 F.2d 717 ( 1953 )