Murphy concerning the separation and that the first complaint he had was on April 28, 1947. The testimony is certainly devoid of any clean cut formal complaint prior to April 28, 1947, and that date loses most of its significance in view of the fact that two days later plaintiff made a payment on account.
In Bomze v. M. Schwarz Textile Corp., 100 Pa.Super. 588, the plaintiff bought a certain red broadcloth represented to have a fast color which would not run. A 5 yard piece of the broadcloth was first bought and shortly thereafter 64 yards more were bought, the latter being delivered on January 8. He made no test but immediately began using it. On February 4, he discovered that the color of the broadcloth was not fast but was running and spoiling the product. He gave immediate notice to defendant of the alleged breach of warranty, giving as his reason for not testing the material that he had no trouble with the 5 yard piece. In reversing a judgment for plaintiff and entering it in favor of defendant, the court said: 100 Pa.Super.at page 592.
'Under the evidence in this case, the buyer accepted the goods. Having accepted them, he could only hold the seller liable for breach of warranty by giving notice of the breach 'within a reasonable time after the buyer knows or ought to know of such breach.' Out of that provision, which is declaratory of the common law founded on business practice, grows the buyer's duty to inspect or test the goods within a reasonable time to determine whether they comply with the warranty. Performance of that duty is important to the seller. It is the plaintiff's own evidence that he did not perform that duty; that he made no inspection or test until more than three weeks after he had cut them up, notwithstanding that he testified to two simple methods of determining whether the color was fast. * * *'(Emphasis supplied.)
In Tinius Olsen Testing Machine Co. v. Wolf Co., 297 Pa. 153, 146 A. 541, 72 A.L.R. 718, in which the sale of certain machinery was involved, plaintiff-seller sent its engineer to defendant's plant to check on its requirements and recommended a certain type of machine, which it guaranteed would do certain work in an economical fashion. The machine was set up in defendant's plant on August 31. Defendant tried to make it work satisfactorily until September 28, when it gave notice to plaintiff of its election to rescind the contract for breach of warranty. Plaintiff sued for the purchase price. In affirming a judgment for plaintiff upon the ground that defendant had failed to give prompt notice of the alleged breach of warranty, the Supreme Court said, 297 Pa.at page 158, 146 A.at page 542:
'In determining the question, the court below found the following express warranty had been made and breached: 'That all that was required to do was to put the appliance on a machine and it would indicate the amount and location of unbalance.' When plaintiff's engineer demonstrated the machine on August 31, 1926, defendant then knew that this warranty had failed, and the machine would not indicate the amount of unbalance without calculation and use of a chart. It waited a month before giving notice. The lower court held this was an unreasonable time, and we concur in its conclusion. If defendant wanted to rescind, it should have acted promptly. The vendor was entitled to this knowledge, as a matter of business, and the breach was one that was immediately discoverable. It was not necessary to specify in the notice of rescission this specific breach of warranty. A notice of rescission must be clear and unambiguous, conveying on unquestionable purpose to terminate the contract. Where, from the conduct of the one having the right to rescind, it is not clear whether he has rescinded the contract or not, he will be deemed not to have done so. Wright v. Bristol Patent Leather Co., 257 Pa. 552, 556, 101 A. 844; 2 Black on Rescission of Contracts (vol. 2), Sec. 574. * * *'1(Emphaosis supplied).
In Comfort Springs Corporation v. Allancraft Furniture Shop, Inc., 165 Pa.Super. 303, at page 306, 67 A.2d 818, 820, very similar to the instant case, the court said: '* * * In one letter, (March 4, 1947, nearly two months after delivery) the buyer made no complaint about the quality of the goods and in the other (March 21, 1947, six days before the attempted rescission) the appellant-buyer expressed appreciation for past cooperation and requested indulgence for a short time longer to make payment. The difficulty with appellant's position therefore is that his proofs are vague, indefinite or incompetent, and utterly fail to substantiate any waiver of rights on the part of the seller. * * *'
There is certainly nothing in the facts developed before me in this case to indicate the prompt and unequivocal notice required by the Sales Act.
Conclusions of Law
1. This Court has jurisdiction of the parties and the subject matter of this action.
2. No warranty, expressed or implied, was given that Emery 0-422 was the same as Emery 0-20, or that it would make satisfactory pine jelly soap when used in a formula, which plaintiff admits the defendant did not know.
3. The cause of the separation of the plaintiff's soap was not the titer value of or any defect in Emery 0-442.
4. When the plaintiff discovered or should have discovered what it claims was a breach of the defendant's alleged warranty, it failed to give to the defendant the prompt and unequivocal notice required by the Sales Act of 1915.
5. Under the terms of the invoice the account drew interest from thirty days after date of invoice, which would be March 9, 1947.
6. The defendant is entitled to judgment in its favor upon the plaintiff's claim, and to a judgment against the plaintiff in the amount of $ 6,412.40, with interest from March 9, 1947.
Counsel for defendant will tender appropriate decree for entry.