Sales — Warranty — Notice of breach — Time — Rescission — Defect not ascertainable until after manufacture and sale.
Plaintiff sold to defendant twelve cases of rayon yarn, warranting the rayon to be of first quality. Defendant, as plaintiff knew, was engaged in manufacturing coat linings from rayon and selling these linings to his customers undyed. The rayon sold to defendant was not as warranted, in that it did not dye evenly. This defect was not ascertainable by inspection. Defendant first learned of the defective quality of the cloth he had manufactured from his purchasers, who had dyed the goods for their own trade, and thereafter, within a week, defendant complained to plaintiff. In meetings and conversations with plaintiff's vice-president and other named representatives, defendant pointed out the breach of warranty relied on and told plaintiff to take back the rayon yarn not manufactured into linings.
Plaintiff brought action to recover the contract price for the rayon. Defendant set up the breach of warranty and counterclaimed for loss by reason of cloth manufactured from plaintiff's defective yarn. Held that (1) the questions of the quality of the goods, the breach of the warranty, whether defendant had acted with reasonable promptitude upon ascertaining the defective quality of the goods, and whether defendant had given clear notice of rescission, under the evidence, were questions for the jury; (2) defendant was entitled to rely on plaintiff's express warranty and was not obliged to test the goods before manufacture of the linings for sale; (3) notice of the breach of warranty within a reasonable time after complaints to defendant by his customers was sufficient; (4) defendant was not required definitely to rescind the contract so long as plaintiff was endeavoring to remedy his complaint; and (5) defendant had a right to rescind, although a part of the yarn had been manufactured into linings, since the defect in taking the dye could not be discovered until the goods were manufactured.
Argued October 29, 1936.
PER CURIAM, February 26, 1937:
On the argument of this appeal the appellant, plaintiff, did not press its motion for a new trial. It rested its case on its right to judgment non obstante veredicto. The opinion of the learned President Judge of the court below, — so far as it bears on the present controversy — is printed in the reporter's statement and fully justifies the action of the court assigned for error. The difference between complaints of dissatisfaction, averred in general terms in an affidavit of defense, (See Spiegelberg v. Karr, 24 Pa. Super. 339, 341; Werbitsky v. Fisher, 64 Pa. Super. 284, 287; Meguire v. Gallagher, 89 Pa. Super. 576, 580, and similar cases relied on by appellant), and definite evidence, on the trial, of meetings and conversations with the seller's vice president and other named representatives, in which the breach of warranty relied on was pointed out and the seller was told to take back the rayon yarn not manufactured into coat linings, is manifest.
Kirk Johnson Co. v. Light, 100 Pa. Super. 425, and the cases cited therein are authority for the proposition that the defendant was not required definitely to rescind the contract as long as plaintiff was endeavoring to remedy the buyer's complaint; and Moskowitz v. Flock, 112 Pa. Super. 518, 171 A. 400, supports the buyer's right to rescind, although a part of the yarn had been manufactured into linings, where the defect in taking the dye could not be discovered until the goods were manufactured.
The judgment is affirmed.