Danish Pride Milk Products Co. v. Marcus

Citations

• 272 Pa. 340
• 116 A. 303
• 1922 Pa. LEXIS 824

Syllabus

<p>Contracts — Payment—Accord and satisfaction — Agreement to receive bach merchandise — Contemporaneous agreement — Principal and agent — Evidence—Party dead — Agent — Authority — Accepting, benefits — Estoppel—Hearsay—Harmless error — Delay — Act of May 28, 1887, P. L. 158.</p> <p>1. A vendee’s payment for such part of the- merchandise as he has resold, accompanied by an offer to return the balance, does not constitute an accord and satisfaction.</p> <p>2. It is proper to admit in evidence a contemporaneous agreement made in connection with a sale of merchandise by which the vendor agreed to accept a return of the portion of the goods which the vendee was unable to sell.</p> <p>3. Where such an agreement is made by an agent, and the' vendor confirms it, and retains the benefit thereof, he cannot repudiate the agent’s authority to make the agreement.</p> <p>4. In such case, the vendee is a competent witness, although the agent is dead, to testify to the oral agreement, inasmuch as the agent was not á party to the thing or contract in action, although he represented the vendor. The Act of May 23, 1887, P. L. 158, does not apply.</p> <p>5. Where a vendor confirmed an order taken by an agent, and retained the benefit thereof, it cannot repudiate his authority to make the alleged oral agreement.</p> <p>6. It is error for the court to admit in evidence complaints of the goods made in statements by persons who had purchased them from defendants. Such evidence is mere hearsay.</p> <p>7. Where the quality of the goods is put in issue by the statement of claim and the affidavit of defense, the vendor cannot contend that the admission of hearsay evidence was harmless error for the reason that the vendees were precluded from interposing the quality of the goods as a defense, because of the long delay in returning or offering to return them.</p>