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SMAIL ET AL. v. PENOWA COAL SALES CO. ET AL. (01/17/52)

January 17, 1952

SMAIL ET AL.
v.
PENOWA COAL SALES CO. ET AL.



COUNSEL

Paul E. Hutchinson, J. Leonard Smith, Jr., and Reed, Smith, Shaw & McClay, all of Pittsburgh, for appellant.

Thomas L. Wentling and Patterson, Crawford, Arensberg & Dunn, all of Pittsburgh, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 170 Pa. Super. Page 312]

DITHRICH, Judge.

Plaintiffs are partners trading as the Smail Coal Company and as such are engaged in the strip mining business. They brought this action in assumpsit against the defendant, Penowa Coal Sales Company, to recover $2725.63, with interest, alleged to be due under an oral

[ 170 Pa. Super. Page 313]

    contract pursuant to which plaintiffs sold and defendant bought 18 carloads of coal containing 1090 tons at $2.50 per ton.

The record discloses that in June and July of 1947 coal in the quantity alleged was consigned to defendant and delivered to the Pennsylvania Railroad scales at Youngwood. The shipments were resold and reconsigned by defendant to the Central West Coal Company. When the coal arrived at its docks on Lake Erie, a representative of the Central West Coal Company inspected it and discovered that it was of inferior quality. A reduction of $1.50 per ton from the selling price was demanded and granted to the purchaser. In due course defendant received payment in the amount of $1.00 per ton plus a sales commission.

Defendant having admitted in its answer under 'New Matter' that it had resold the coal for $1096.26, upon motion by counsel for plaintiffs judgment was entered in favor of the plaintiffs and against the defendant in the aforesaid sum, and the jury found for plaintiffs for the remainder of their claim.

By way of defense against liability for the payment of the balance of plaintiffs' claim, defendant asserted that the oral contract between the parties was not one of outright sale at a fixed price as alleged by plaintiffs, but was, rather, a brokerage agreement whereby it was to sell the coal at the best price obtainable and remit to plaintiffs the price obtained, less a sales commission. Moreover, defendant averred that the shipments made by plaintiffs to defendant were pursuant to an established custom in the coal trade, namely, that orders for the account of others were subject to inspection and rejection by the ultimate consignee at the risk and expense of the shipper. There was evidence to support the defense offered, including uncontradicted testimony that, when the Central West Coal Company refused to accept the coal unless an allowance was

[ 170 Pa. Super. Page 314]

    made, one of the plaintiffs, Richard Smail, directed defendant to sell the coal at the best possible price to avoid the expense of reconsignment. Hence, it was defendant's position that $1096.26, the resale price less the sales ...


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