OpenJurist › Volume 318 › Pa. › Page 331 318 Pa. 331
Fox v. Davey Compressor Co. Supreme Court of Pennsylvania · decided 1935-03-28
Good law ✅ — No negative treatment on record how we know
Decided 1935-03-28
How this case has been cited Cited by 6 later decisions — most recently July 1975
6 state decisions
2 0 1935 1940 1950 1960 1970 decided Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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Per Curiam,
¶1
At the trial in the lower court a nonsuit was entered which the court in bane subsequently refused to take off. We find no error in the record, and the judgment is affirmed on the opinion of the learned trial judge.
¶2
Judgment affirmed at appellants’ costs.
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Case posture Posture Appeal, No. 103, March T., 1935, by plaintiffs, from judgment of C. P. Allegheny Co., April T., 1933, No. 2607, in case of J. C. Fox, surviving Tillie I. Fox, his wife, and N. N. Schwotzer, partners doing business as Option Equipment Supply Company, v. Davey Compressor Company. Judgment affirmed.
Assumpsit.
The facts are stated in the opinion of the lower court, EGAN, J.:
At the trial of this action in assumpsit to recover the sum of $2,339.96, with interest, the trial judge granted a
compulsory nonsuit, which plaintiff now moves to take off.
It has been frequently held that a nonsuit can be entered only in clear cases, after accepting as true all of the testimony produced by the plaintiff and viewing it in the light most advantageous to plaintiff: Todd v. Nesta, 305 Pa. 280 , 287 . Examining the testimony in this light, it discloses the following facts:
On January 30, 1930, the parties entered into a written contract whereby the plaintiffs had the right to purchase equipment from the defendant, and the exclusive right of resale in certain designated territory, except for certain limitations which are not involved in this issue. The contract provided that plaintiffs carry sufficient equipment in stock to meet orders and pay defendant for all equipment f. o. b. its factory within 30 days of shipment at defendant's list prices, less a 30% discount. This contract was of unlimited duration, but provided that it was subject to cancellation by either party at any time upon 30 days' written notice by mail. A clause under paragraph 17 of the contract raised the legal issue involved in the case; it reads:
In the event that this contract is cancelled by the Manufacturer [defendant], he agrees to accept return from the Distributor [plaintiffs] of any part of the equipment purchased hereunder and allow credit for it at price paid, providing same is new and unused and is returned to the Factory, transportation charges prepaid by the Distributor.
Defendant, being disappointed with the results produced by plaintiffs, by letter dated February 14, 1931, duly received by plaintiffs, cancelled the contract, which made such cancellation effective on March 16, 1931, but on March 18, 1931, the defendant extended the plaintiffs' right as an exclusive distributor as to certain specified prospects for an additional period of thirty days. This made April 17, 1931, the final day of the contract. On this date (April 17, 1931) plaintiffs owned two compressors
and some repair parts which they had bought from the defendant. After April 17, 1931, plaintiffs had the right to sell this equipment, but such right was not exclusive.
From April 17, 1931, to December 21, 1932 (a period of one year, eight months and four days), plaintiffs retained the two compressors. During this period plaintiffs did not return or tender the two compressors to defendant, but at the trial plaintiffs offered in evidence a copy of a letter (Exhibit 8), together with testimony of two witnesses that it had been addressed to the defendant and mailed on July 1, 1931. The plaintiffs produced no evidence that this letter (Exhibit 8) had been received by the defendant, and one of the plaintiffs admitted that they had received no response to it from defendant. It was also admitted by plaintiffs (page 24) that in a conversation between plaintiffs and Mr. Paul Davey, vice-president of defendant, the latter stated that he had never received any such letter.
On December 21, 1932, plaintiffs transported the two compressors and repair parts by truck to defendant's factory at Kent, Ohio, tendered them to defendant through one of its officers and requested repayment of the price which plaintiffs had paid for them. This was refused by defendant, whereupon the plaintiffs placed the equipment in storage at Kent, Ohio, and this suit followed.
For the moment, disregarding the letter of July 1, 1931, let us examine the clause under paragraph 17 of the contract. This provision about the distributor (plaintiffs) returning equipment, upon cancellation of the contract, is in the nature of an option or an agreement by the defendant to repurchase if the plaintiffs desired to sell the equipment at the price they had paid for it. The clause does not specifically bind the plaintiffs to return any unsold equipment and receive payment for it, but provides that the defendant would accept return of any new and unused equipment if the plaintiffs returned it to the defendant's factory, transportation charges prepaid.
No specific time within which the plaintiffs could exercise this right of returning the equipment is stated in the contract; therefore, such return, or tender or agreement to return must be made within a reasonable time. Plaintiffs kept the compressors in their possession for a year and eight months and then appeared with them at defendant's factory, made tender and requested payment of the sum they had paid for them. The trial judge ruled in entering the nonsuit that this was an unreasonable time. There was no question of doubt and the facts were not in dispute, so that the question as to whether this was a reasonable time was for the court: Riddle v. Taubel, 277 Pa. 95 ; Grant v. Lovekin, 285 Pa. 257 ; Tinius Olsen Test. Machine Co. v. Wolf Co., 297 Pa. 153 ; Elk Textile Co. v. Cohen, 75 Pa. Super. 478 ; B. I., Inc., v. Phillips Son, 95 Pa. Super. 184 . This was a commercial transaction involving equipment, which the plaintiffs were in the business of selling at and after the date the contract expired, and a sale if made at the list price would mean 30% profit to the plaintiffs, and the compressors, while unused, were almost two years old when plaintiffs attempted to return them on December 21, 1932.
The copy of the letter of July 1, 1931, (Exhibit 8) and testimony that it had been properly addressed, stamped and mailed, raises a presumption that it was received by the defendant in due course of mail: Neubert v. Armstrong Water Co., 211 Pa. 582 ; Whitmore v. Dwelling House Ins. Co., 148 Pa. 405 ; Beeman v. Supreme Lodge, 215 Pa. 627 ; Estok v. Estok, 102 Pa. Super. 604 . This is a rebuttable presumption however: Beeman v. Supreme Lodge, 215 Pa. 627 . On this presumption plaintiffs seek to build a second presumption, viz.: that defendant by not answering the letter of July 1, 1931, thereby indicated that it would not pay for the equipment, thus excusing the plaintiffs from making an actual delivery or tender. One presumption cannot be based upon another: Mankin v. Parry, 70 Pa. Super. 558 ;
Phila. City Passenger Ry. Co. v. Henrice, 92 Pa. 431 ; Carroll v. Willow Brook Co., 108 Pa. Super. 580 ; Fanning v. Equitable L. A. S., 264 Pa. 333 .
Plaintiffs admitted that they received no answer to this letter, and that in correspondence between them subsequent to July 1, 1931, neither party mentioned the letter of July 1, 1931. A part of it, the closing paragraph, concerns the matter in issue:
We would like to know if you will allow us to return these two machines to you and if you will forward us your check for them after you receive them. Neither of these compressors have been used but are in the original condition as when we received them. Please advise us promptly as to your decision in this matter. In addition to the two compressors we also have some repair parts which we would like to return.
We are unable to understand how this unanswered letter warrants an assumption that defendant refused to accept the return of the equipment and pay plaintiffs the original cost price. The letter contains merely an inquiry and not an offer to return the equipment, although the last sentence is worded more strongly than the preceding ones. At best, it is not an unequivocal statement or offer on the part of plaintiffs to return the equipment according to the provision in the contract. However, if it could be so considered, the silence of the defendant could not create a legal liability on its part, nor bestow rights upon the plaintiffs. If the plaintiffs desired to be excused from delivering the equipment in a reasonable time after April 17, 1931, it was their duty to contact defendant, either personally or by letter, and receive a refusal of acceptance of the equipment. This they did not do and a tender of delivery on December 21, 1932, was after the expiration of a reasonable time under the circumstances.
At the argument before the court en banc, and in the brief submitted, counsel for plaintiffs based his principal contention of error upon the part of the trial judge on a
theory which was not advanced at the trial. It is his contention that the clause in the contract about cancellation and return of equipment means that the equipment could be returned at any time provided it is new and unused. He argues that the words new and unused fix a period within which redelivery may be made after cancellation. We are unable to accept such a forced construction, as it appears to us that the words new and unused refer to the condition of the equipment and not to the time during which it might be returned. Under the contract the defendant agreed to accept the equipment, but if plaintiffs brought it to defendant's factory the day following cancellation, defendant was not bound to accept it unless it was new and unused. The word providing does not mean during the time, but reading the clause in its entirety, it required the defendant to accept and pay for new and unused equipment delivered or tendered in a reasonable time after the date of cancellation. Plaintiffs did not do that and are not entitled to recover.
Compulsory nonsuit entered. Motion to take it off refused. Plaintiffs appealed.
Error assigned was refusal to take off nonsuit. Source: CourtListener
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