Appeal, No. 106, April T., 1959, from judgment of County Court of Allegheny County, No. A245 of 1955, in case of Renard Linoleum and Rug Company v. David D. Price, individually and trading as Price Furniture Company. Judgment reversed.
Harry R. Levy, for appellant.
William Sloan Webber, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 191 Pa. Super. Page 220]
We are here concerned with an action in assumpsit, originally instituted before an alderman, to recover the unpaid balance of a promissory note. From the alderman's judgment for the plaintiff, the defendant appealed to the County Court of Allegheny County. The case was tried without a jury. Plaintiff requested a finding in its favor, but the trial judge entered judgment for the defendant. Plaintiff thereafter filed a motion to open the judgment and for judgment on the whole record, and also a motion for a new trial. These
[ 191 Pa. Super. Page 221]
motions were dismissed by the court en banc. Plaintiff has appealed.
Appellee, a retailer of household furnishings, had purchased a number of rugs from appellant, a wholesale distributor. The business dealings between the parties covered a period of several years, and were originally upon open account. However, appellee became delinquent and, at appellant's suggestion, executed a series of promissory notes. The note in question was for the sum of $500.00, dated November 23, 1953, payable March 31, 1954. It was conceded that appellee was entitled to a credit of $200.00, representing a payment in that amount. In his answer to the complaint, under new matter, appellee averred that a Trinidad rug furnished by appellant was defective. Appellee also counterclaimed for losses on a Penhurst rug and certain 20th Century carpet. The total amount of the counterclaim was equivalent to the unpaid balance. In its reply appellant averred that appellee had made no complaints until the time of hearing before the alderman, and had entirely failed to comply with the custom of the trade relative to notice of defects.
Our examination of the original record reveals that the Trinidad rug was purchased on April 3, 1953, and was immediately re-sold by appellee to one of its customers, who accepted delivery and is still in possession of the rug. So far as the record discloses, appellant sustained no loss in this transaction. The Penhurst rug was purchased on September 25, 1952, and was immediately re-sold. Appellant testified that he was compelled to repossess this rug, and disposed of it at a loss. The 20th Century carpet was purchased on May 29, 1952, and placed on the display rack. Appellee testified that, nine months later, he discovered a damaged spot and had to sell the carpet at a loss. It is important to note that appellee admitted that he was aware
[ 191 Pa. Super. Page 222]
of all three complaints prior to the execution and delivery ...