Appeal, No. 111, Oct. T., 1961, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1957, No. 498, in case of The Magnavox Company v. The Royson Engineering Company. Judgment affirmed.
Roland J. Christy, for appellant.
Charles Blasband, and Blasband and Mogul, for appellee. 141
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 195 Pa. Super. Page 141]
OPINION BY MONTGOMERY, J.
This is an action in assumpsit to recover $4,709.98 for thermal cutouts which appellee buyer had received from appellant seller over a period of twenty-two months beginning March 8, 1954. These devices were used in the construction of ship radios. The cutout is connected to the antenna or in the aerial of the ship's radio receiver and is to prevent the burning out of the receiver's input from too strong a signal caused by close proximity of other ships. The contract called for 2,052 cutouts at $6.00 each to be shipped beginning in March, 1954, and ending January, 1955. Because of alleged defects 1,095 cutouts were returned from October, 1955, to March 6, 1956. These returns were not identified as to date when received but could have been held as long as 22 months before appellee returned the devices as defective.
Plans and specifications were provided by the appellee. Samples were submitted and checked and defects were pointed out, with a request that appellant correct them and proceed with production. From time to time beginning shortly after units were sent to the appellee, some units were returned for replacement. From March, 1954, through January, 1956, defective units were returned and accepted by the appellant. Because units were not meeting specifications, several conferences were held between appellant and appellee. During all this period defective units were accepted back without objection. Since units continued to be unworkable, appellee had to cancel its contract and seek another source of supply.
The contract of purchase provided that the laws of the State of Indiana should govern the transaction. The Uniform Sales Act was then in force in Indiana. Burns Ind. Stat. Vol. II. It was further provided: "Notwithstanding prior payment to obtain cash discount, goods subject to Magnavox inspection may be
[ 195 Pa. Super. Page 142]
rejected and returned (with charge for transportation both ways) if inspection shows goods are not strictly in accordance with Magnavox specifications, drawings or samples. This clause applies to any goods unpacked at any time after receipt of such shipment. ..."
Under the Uniform Sales Act, § 48, the mere retention of goods by the purchaser after a lapse of a reasonable time by itself is not sufficient to constitute an acceptance. In regard to treating the return of purchased goods for breach of warranty, the act provides that retention must be without intimating to the seller that the purchaser has rejected them. The fact that the appellee rejected many of the units and notified the appellant of the defects is clear from the record. The concern evidenced by conferences and correspondence caused by the constant rejection of units is far more than the mere intimation required by the act. A comparison of the dates of return and shipment dates set forth in the record reasonably could lead to the conclusion that rejection and return were indeed timely for at least some of the cutoffs. The appellant has no cause for complaint because the Judge submitted the case to the jury upon his conclusion that the facts did not admit of only one inference. It is well-settled law that, where the facts are undisputed, the question of whether there has been an unreasonable delay in inspecting goods purchased and advising the seller of imperfections is one of law for the Court. Crunden Martin Mfg. Co. v. Turner, 274 ...