Appeal, No. 173, Jan. T., 1949, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1947, No. 4797, in case of Arco Metalscraft Company v. Kenneth Shaw, trading as Fred Hill & Son. Co. Judgment reversed.
Morris C. Solomon, with him Melling and Howland, for appellant.
Albert S. Herskowitz, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. CHIEF JUSTICE MAXEY
This is an appeal from a judgment in favor of the plaintiff in the sum of $5,000, in an action in assumpsit to recover the contract price of 435 market strollers*fn* at $12.75 each, totaling $5,546.25 and $727.20 for certain other manufactured goods admittedly due to plaintiff.
On July 16, 1947, the defendant placed a written order with the plaintiff for 500 market strollers to be manufactured in accordance with an accepted sample. On October 27, 1947, fifty strollers were delivered to the defendant and it was agreed that forty-one of these were defective. They were repaired by the plaintiff and paid for by the defendant and are not involved in this action. Three more shipments of fifty strollers each were delivered during December, 1947. The defendant after inspection notified the plaintiff of certain defects in them and the latter promised to make the necessary repairs but failed to do so. The plaintiff then notified the defendant that the balance of the order was ready for delivery. Defendant rejected delivery and orally rescinded the contract. This suit then followed.
Plaintiff claimed that the total of said production orders, shipped and accepted at the instance of the defendant, was in the sum of $4,310.08, less a credit for allowance on the repair of forty-one strollers, agreed upon, in the sum of $26.95. In addition, certain other units totaling $2,820.75, were fabricated for the defendant on which he refused delivery.
The defendant filed an answer and counterclaim admitting that these strollers were manufactured for him by the plaintiff and that the first fifth strollers were accepted and paid for after their repair. He denies that he accepted the other 150 strollers in his possession and claims that they were defective in workmanship in that the frames were not straight, holes were not punched in the metal so that the units could be assembled, the seats and other parts were of poor quality and the strollers were not suitable for resale by him because they did not conform to the accepted sample.
Defendant admitted in his answer that he had owed plaintiff $1,428.63 for other items manufactured for him but claimed that after commencement of this suit, he had paid that ...