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ELLEN M. FARRELL v. BRANDTJEN & KLUGE (08/30/54)

August 30, 1954

ELLEN M. FARRELL, TRADING AS WAYNE PRINTING COMPANY.
v.
BRANDTJEN & KLUGE, INCORPORATED



COUNSEL

Charles L. Cunningham, Stonecipher & Cunningham, Pittsburgh, for appellant.

Robert L. Prior and Julia M. Doyle, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Woodside

[ 176 Pa. Super. Page 413]

WOODSIDE, Judge.

This comes before us on appeal from the refusal of the Court of Common Pleas of Allegheny County to grant motions for a new trial and judgment non obstante

[ 176 Pa. Super. Page 414]

    veredicto after verdict for the plaintiff in an assumpsit action based upon rescission of a contract for the purchase of a printing press.

The plaintiff entered into a contract with defendant for the purchase of printing press, f. o. b. St. Paul, Minn. In connection therewith she signed and executed a conditional sales contract providing for monthly payments to commence 30 days after installation of the press in the plaintiff's plant by the defendant. Prior to the arrival of the press in Pittsburgh the plaintiff paid the defendant $705.24.

The jury having found for the plaintiff we must view the evidence in the light most favorable to her, and give her the benefit of every inference of fact pertaining to the issue involved, which may reasonably be deducted from the evidence.

On October 29, 1949, when the printing press arrived in Pittsburgh and before it was removed from the common carrier's truck it was discovered that it had a broken leg. The plaintiff's husband, the manager of her printing business, immediately telephoned the defendant's office in St. Paul and told its agent of the broken condition of the press. He demanded that defendant either refund to her the money she had paid the defendant or send her another press, or rebuild the damaged one.

The defendant suggested that plaintiff's manager should not get excited, that these things happened every day, that he should unload the press from the truck and file a claim against the carrier; and that either the carrier or the defendant would take care of the damage. The plaintiff thereupon permitted the press to be unloaded and immediately wrote to the defendant to determine the cost of repair and, as directed by defendant, made a claim against the carrier which claim the carrier never paid.

[ 176 Pa. Super. Page 415]

The press was not shipped directly to Pittsburgh. It had been shipped from the defendant's plant in St. Paul, Minn. to Lemoyne, Pa. on a uniform order bill of lading in which the defendant was made consignee. The common carrier was York Motor Express. When the intended purchaser in Lemoyne did not accept the press it was shipped at the direction of the defendant on a uniform order bill of lading, in which the defendant was again named consignee, to ...


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