forth. Conceivably there might be other elements of damage
arising from a transaction of this sort, such as damage from
loss of business and loss of customers as a result of the
breach of warranty, all of which might be considered as part
of its damage. The record is bare of any proof of such losses.
As to adjustments that were made with its customers, as
pointed out before, plaintiff has not sufficiently established
that they were due to the shortages.
The defendant has urged that the plaintiff is not entitled
to recover any amount because it failed to give notice of the
breach within a reasonable time. Section 49 of the Act, 69
P.S.Pa. § 259, provides as follows: "In the absence of express
or implied agreement of the parties, acceptance of the goods by
the buyer shall not discharge the seller from liability in
damages or other legal remedy for breach of any promise or
warranty in the contract to sell or the sale. But if, after
acceptance of the goods, the buyer fail to give notice to the
seller of the breach of any promise or warranty, within a
reasonable time after the buyer knows or ought to know of such
breach, the seller shall not be liable therefor."
The record indicates that within a short time after the last
sale to plaintiff, the defendant was apprised of an apparent
shortage in length. Defendant argues that the buyer should
have inspected the goods upon receipt of them, either by
measuring a roll of the wire or by cutting off a length of the
wire, weighing it, and comparing that weight with the weight
of the roll to determine whether the length was as
represented. This argument ignores the realities of the
situation. The evidence is clear that the barbed wire had been
machine-rolled at the factory. The plaintiff was a dealer and
bought these rolls for purposes of resale. Insofar as the
plaintiff was concerned, these rolls of barbed wire might
reasonably be regarded as in an original package. Once
unrolled it would have been impossible without special
equipment to reroll the barbed wire in such a way as to permit
As to the contention that a piece of the wire should have
been cut off and weighed, that method of determination was
equally available to the defendant before offering for sale
approximately 75,000 rolls of barbed wire to the trade.
Defendant cannot be heard now to complain that this was a
reasonable method of inspection when the defendant itself did
not use such a method. I conclude, therefore, that the
plaintiff gave notice within a reasonable time after it had
reason to know of the breach of warranty and that it is
entitled to recover damages for the breach of warranty.
From the pleadings and proof, I make the following Findings
of Fact and Conclusions of Law.
Findings of Fact
1. Plaintiff is a corporation incorporated under the laws
of the State of Florida, and defendant is a corporation
incorporated under the laws of the State of Pennsylvania.
2. The amount in controversy, exclusive of interest and
costs, exceeds $3,000.
3. Plaintiff is engaged in the general hardware business
with a place of business at Miami, Florida, selling at
wholesale and retail.
4. Prior to August 23, 1943, defendant made various written
representations to plaintiff that it had in its possession for
sale a number of carloads of barbed wire which it represented
to be 12 1/2 gauge, 4 point black wire with barbs 1/2 inch to
3/4 inch long with 3 inch spacing, in coils weighing 56
pounds, (approximately 58 rods in length), and solicited
plaintiff's order for barbed wire.
5. Plaintiff purchased from defendant by means of eight
written purchase orders transmitted to defendant between
August 23, 1943 and October 14, 1943, 11,500 rolls of the
barbed wire offered for sale by the defendant.
6. Plaintiff did not see the barbed wire offered for sale
by defendant or a sample of it prior to entering into the
first purchase contract with defendant, but purchased in
reliance upon the description furnished by defendant.
7. The first three purchase orders transmitted to plaintiff
by defendant specified
the length of the wire in the rolls purchased as 58 rods per
8. In accordance with the purchase orders forwarded by
plaintiff, defendant shipped to plaintiff or to customers of
plaintiff, in accordance with shipping instructions forwarded
by plaintiff, 11,500 rolls of barbed wire from the stock of
barbed wire which it described and represented to plaintiff
and for which it solicited purchase orders from plaintiff.
9. The first three orders purchased by plaintiff were
shipped by defendant directly to plaintiff. The last five
orders were shipped by defendant directly to customers of
10. The barbed wire sold and delivered by defendant to
plaintiff and to customers of plaintiff was supplied by
defendant from the lot of barbed wire which it described and
represented to plaintiff and was of the same character and
kind subject only to slight variations in the lengths of the
individual rolls of wire delivered.