Summary
In F. W. Lang Co. v. Fleet, 193 Pa. Super. 365, 165 A.2d 258 (1960), suit was brought to recover the sales price of an ice cream freezer and a refrigeration compressor unit sold to the defendant.
Summary of this case from Bowen v. YoungOpinion
September 19, 1960.
November 16, 1960.
Sales — Rejection of goods by buyer — Reasonable time — Buyer's exercise of ownership after rejection — Ratification of sale by seller — Entry of judgment for unpaid balance — Rescission — Opening judgment entered by confession — Action in assumpsit by defendants.
In a proceeding upon a petition to open a judgment entered by confession, in which it appeared that defendants, under a written installment sales contract, purchased from plaintiff an ice cream freezer and a refrigeration compressor unit; that, following default by defendants in payments under the contract, plaintiff caused a writ of replevin to be issued, under which the equipment was seized and delivered to plaintiff, and judgment was entered against defendants; that defendants filed a complaint in assumpsit alleging that the equipment was defective and wholly unusable for the purpose intended; that plaintiff entered judgment by confession pursuant to the written installment sales contract, and defendants filed a petition to show cause why the judgment should not be opened and defendants let into a defense and the matter consolidated with the proceeding in assumpsit; that from depositions taken by defendants it appeared that about two years after the equipment was installed defendants disconnected the compressor from the freezer and connected it to an air conditioner, where it was used by defendants until the equipment was replevied by plaintiff; and that the court below, holding (a) since defendants had failed to reject the goods within a reasonable time after delivery, and had exercised dominion over the compressor unit by using it to operate their air conditioner, and since the seller by entering judgment for the unpaid balance had ratified the sale as represented by the installment sales contract, defendants were deemed to have accepted the goods and were precluded from unilaterally asserting a rescission of the sale contract, and that (b) the judgment was not required to be opened merely because defendants had instituted an action in assumpsit to recover the down money paid and their expenses, discharged defendants' rule to open the judgment; it was Held that the order of the court below should be affirmed.
Before RHODES, P.J., WRIGHT, WOODSIDE, ERVIN, WATKINS, and MONTGOMERY, JJ. (GUNTHER, J., absent).
Appeals, Nos. 285 and 286, Oct. T., 1960, from order of Municipal Court of Philadelphia County, Dec. T., 1959, No. 3610 E, in case of F.W. Lang Co. v. Bertram Fleet et al. Order affirmed.
Same case in court below: 22 Pa. D. C. 2d 361.
Proceeding upon petition of defendants and rule to show cause why judgment entered by confession on a written agreement should not be opened, and defendants let into a defense, and matter consolidated with proceeding in assumpsit.
Order entered discharging rule, opinion by BOYLE, J. Defendants appealed.
Lee B. Sacks, for appellants.
Howard Saul Marcu, with him Daniel Marcu, and Marcu, Marcu Marcu, for appellee.
Argued September 19, 1960.
The order of the court below is affirmed on the opinion of Judge BOYLE, of the Municipal Court of Philadelphia, as reported in 22 Pa. D. C. 2d 361.