Appeal, No. 336, Jan T., 1955, from judgment of court of Common Pleas No. 3 of Philadelphia County, March T., 1954, No. 5294, in case of Solar Electric Corporation v. Exterminator Corporation of America. Judgment affirmed; reargument refused March 6, 1956.
Mitchell W. Miller, with him Levi, Mandel & Miller, for appellant.
Stephen J. Korn, with him Nathan L. Posner and Fox, Rothschild, O'Brien & Frankel, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff company sued in assumpsit to recover, under count 1, for the defendant's failure to pay for goods sold and delivered, consisting of a certain quantity of Insecticide Lamps and, under count 2, for a loss of profits due allegedly to the defendant's breach of a written contract for the purchase and sale of 1,000,000 Insecticide Lamps.
The case was tried to the court without a jury. At the conclusion of the plaintiff's case the defendant moved for a compulsory non-suit. A recess for lunch was taken without any ruling by the trial judge on the defendant's motion. Upon resumption of the trial and before any action by the court on the motion for non-suit, counsel for defendant rested and presented a request for a directed verdict which the learned trial judge did not then act upon but granted the defendant's motion for non-suit. In accordance with a local rule of court, the plaintiff, within the time limited therefor, filed exceptions which the court subsequently dismissed and entered judgment for the defendant. We are persuaded from our examination of the record that the correct result was reached by the learned court below. The judgment will be affirmed on the following excerpts from the opinion of Judge WATERS which adequately answer the appellant's contentions.
"Considering first count II, the plaintiff's claim is based on a writing of which a photostatic copy was offered as plaintiff's exhibit number 4. This writing appears to be an order form of the plaintiff, on which the printed name and address of the plaintiff have been obliterated and the name and address of the defendant inserted in typewriting. It is addressed to Solar Electric Corporation, the plaintiff, is marked 'Order No. 43260,' and calls for 1,000,000 60w ST19B1 Insecticide
Lamps. It carries in typewriting the statement, 'This order is subject to a cancellation charge in event of a cancellation by us,' followed by a signature said to be that of Philip Rochlin. The order is undated but bears a rubber stamp purporting to show that it was received by the plaintiff on June 15, 1953.
"The plaintiff contends that one shipment of 5,040 lamps was made to the defendant under this order on July 29, 1953, but that no further shipments were made because of the defendant's failure to make payment for this and earlier deliveries of merchandise.
"We need not consider whether this writing constituted a valid contract between the plaintiff and the defendant or whether the defendant breached the contract because we have concluded that the plaintiff's proof of damages was wholly inadequate. The plaintiff's only witness was its treasurer, and his testimony on the subject of damages was confined to the reading of portions of a letter alleged to have been written by the plaintiff's general manager to the defendant setting forth an 'inventory of Exterminator raw material and finished lamps,' a copy of which is attached to the complaint as exhibit 'C'. The witness's testimony ...