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NUSIDE METAL PRODUCTS v. EAZOR EXPRESS (06/10/59)

June 10, 1959

NUSIDE METAL PRODUCTS, INC.
v.
EAZOR EXPRESS, INC., APPELLANT.



Appeal, No. 85, April T., 1959, from judgment of Court of Common Pleas of Mercer County, June T., 1957, No. 136, in case of Nuside Metal Products, Inc. v. Eazor Express, Inc. Judgment affirmed.

COUNSEL

Philip E. Brockway, with him Chauncey E. Brockway, and Brockway and Brockway, for appellant.

William J. Joyce, with him Martin E. Cusick, and Weisen, Cusick, Madden, Joyce, Acker and McKay, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 189 Pa. Super. Page 594]

OPINION BY WRIGHT, J.

Nuside Metal Products instituted an action in assumpsit against Eazor Express to recover the purchase price of two shipments of steel delivered to the defendant by the plaintiff under c.o.d. agreements. Defendant filed a motion for judgment on the pleadings which was denied. The case was tried before Judge McKAY without a jury, and an adjudication was subsequently entered ordering the entry of judgment in favor of the plaintiff. Defendant's exceptions to the adjudication were dismissed and final judgment entered. The defendant has appealed. The factual situation, concerning

[ 189 Pa. Super. Page 595]

    which there is no dispute, appears in the following excerpt from the adjudication:

"The action is in assumpsit to recover the purchase price of two c.o.d. shipments of steel delivered to the defendant by the plaintiff under a c.o.d. agreement. The defendant in turn delivered the shipments to another carrier, which collected the purchase prices from the consignees and remitted the proceeds directly to the plaintiff by two checks which were subsequently dishonored.

"The purchase prices of the shipments were $1171.50 and $490.00, respectively. The connecting carrier was the Albrent Freight and Storage Corporation. Its successor was the Clintonville Transfer Lines, Inc. A Receiver in bankruptcy was appointed for both companies on July 26, 1955. The checks of the Albrent Freight and Storage Corporation covering the two collections were received by the plaintiff on the 27th or 28th of July, 1955 and deposited at the McDowell National Bank, Sharon, Pennsylvania on July 28, 1955.

"Subsequently, but prior to September 27, 1955, the defendant learned of the bankruptcy and also that the checks had been dishonored. On that date, September 27, 1955, the traffic manager of the defendant company wrote to the plaintiff referring to the bankruptcy of the connecting carrier, advising the plaintiff that money collected by carriers for other persons does not belong to them and suggesting that the plaintiff demand immediate payment from the receiver in bankruptcy.

"On or about September 30, 1955, the plaintiff filed a proof of claim against the estate of the connecting carrier corporation. In June, 1956, the plaintiff made formal demand upon the defendant for payment of its claim. In January, 1957, the plaintiff ...


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