Duff v. Thrall

Citations

• 35 Pa. Super. 136
• 1908 Pa. Super. LEXIS 1

Syllabus

<p>Contract — Goods sold and delivered — Rescission.</p> <p>In an action of assumpsit it appeared that defendants, wholesale grocers, ordered through plaintiffs, middlemen, a solid car of raisins of the crop of 1904, to be shipped directly from the Pacific coast to defendants. The price was to be one-half cent per pound less than the price of the new crop then nearly ready for the market. The order was accepted by the packers on the coast on condition that the car should be shipped before the middle of September, and with the understanding that if, at the time of shipment, the price for the new crop had not yet been fixed, an adjustment would be made so as to make the price conform to that which defendants offered to pay, viz.: one-half cent per pound less than the new price. The delivery to the defendants was to be “f. o. b. coast.” The car was duly consigned and shipped on September 7. On the following day plaintiffs advised defendants of that fact, and inclosed a bill and forwarded a draft for the amount of the bill to a bank where it was held awaiting the arrival of the car. On October 5, the price of the new crop was fixed, and on the same date plaintiffs sent a circular letter to all of their customers advising them of this new action, and giving them a new price. The evidence tended to show that the defendants received this circular, but overlooked it. On October 10, defendants received from plaintiffs a corrected bill adjusted at. the price fixed by the contract, aggregating over S300 more than the original bill. The car arrived not later than October 10, and defendants paid the original draft. They refused, however, to pay the excess on the ground that in giving their order they had stipulated that if the prioe should be too high, they might cut down the quantity of raisins ordered. There was nothing to show that defendants had availed themselves of the option before the goods were actually delivered. After they received the corrected bill, and after they h