Appeal, No. 57, Oct. T., 1961, from judgment of Court of Common Pleas of Carbon County, June T., 1956, No. 12, in case of A. Schulman, Inc. v. The Baer Company, Inc. Judgment affirmed.
Joseph M. Smith, with him John P. Lavelle, and George A. Shutack, for appellant.
Joseph H. Foster, with him Martin H. Philip, and White & Williams, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 430]
This is an appeal from the judgment of the Court of Common Pleas of Carbon County, in an assumpsit action, in favor of A. Schulman, Inc., the plaintiff-appellee, and against The Baer Company, Inc., the defendant-appellant, in the amount of $2311.15 with interest in the amount of $500 for merchandise; and from the refusal of the court below to grant judgment n.o.v.
The facts must be viewed most favorably to the plaintiff-appellee. Hyndman v. Pennsylvania Railroad Co., 396 Pa. 190, 152 A.2d 251 (1959). These facts are as follows: Plaintiff, A. Schulman, Inc., is an Ohio corporation engaged in business as a broker and dealer in rubber, scrap rubber and plastic materials throughout the United States and most parts of the world. In late June or early July of 1955, Marvin Fox, a salesman for plaintiff for some ten years, while in his office in New York City, received a telephone call from one Murray Wallet. Mr. Wallet stated that he represented Montour Products Company, a pillow manufacturing concern located in Turbotsville, Pennsylvania, and that his company was interested in purchasing foam rubber, scrap rubber, thread and material of that type to be used in the manufacture of pillows. Mr. Fox then sent samples and a price list to Mr. Wallet.
Shortly thereafter Mr. Wallet again telephoned Mr. Fox and attempted to place an order. Mr. Fox refused to accept the order, stating that he would first have to
[ 197 Pa. Super. Page 431]
check Montour Products' credit. About a week later Mr. Fox telephoned Mr. Wallet and told him that Montour Products' credit rating was such as to prohibit a sale to it. Mr. Wallet then asked Mr. Fox if he could sell to The Baer Company, Inc., of Lehighton, Pennsylvania, the defendant herein. Mr. Fox said he would check Baer Company's credit rating.
About the middle of July, 1955, Mr. Fox again telephoned to Mr. Wallet, telling him that Baer Company's credit was satisfactory. During this telephone conversation, Mr. Wallet, in response to Mr. Fox's question, told Mr. Fox that Montour Products was operating as a branch of Baer Company and that that was why he had suggested this procedure. Mo. Fox told Mr. Wallet that he would have to have confirmation of Mr. Wallet's order from the Baer Company before he could make the sale.
In the latter part of July or early in August, 1955, Mr. Fox received a telephone call from Carlos Baer, president of Baer Company. Mr. Baer told Mr. Fox that he had been in touch with Montour Products and that he authorized Schulman, Inc., to sell materials to Baer Company, to send the bills to Baer Company at its office in Lehighton, but to send the materials themselves to Montour Products in Turbotsville. Mr. Baer further told Mr. Fox to accept orders and shipping ...