Fairfax Textile Mills, Inc. v. Feingold

116 A. 525, 273 Pa. 73, 1922 Pa. LEXIS 519

• Court: Supreme Court of Pennsylvania
• Decided: February 13, 1922
• Docket: Appeal, No. 38
• Status: Published

Opinion

Per Curiam,

Plaintiff sued to recover the sum of $5,184 with interest, claimed to be due under a contract for the sale of seventy-two pieces of Burlington shirting to be delivered “about November-December 1920......f. o. b. New York......The acceptance of a shipment by a railroad or other common carrier, shall constitute a delivery.” By letter of November 15, 1920, defendants directed cancellation of the order, to which plaintiff replied, “under no consideration will we cancel the order,” but offered to defer delivery until a later date, if so desired. Defendants’ reply merely referred plaintiff to their letter of November 15th. The statement of claim sets out the contract and that plaintiff “set aside for the defendants at [its] place of business the said seventy-two pieces of Burlington shirting and [has] at all times bfeen ready, willing and able to deliver the same.” The affidavit of defense in the form of a demurrer raised questions of law based on plaintiff’s failure to make delivery f. o. b. New York to either a railroad or other common carrier. This it failed to do. The setting aside of the goods at its place of business was not a compliance on its part with the terms of the agreement. Plaintiff having treated the sale as an existing contract and having failed to comply with the conditions imposed upon it cannot now recover for the price of the merchandise: American Steel Foundries v. Metal Products Co., 74 Pa. Superior Ct. 505.

The judgment is affirmed.