OPINION BY MR. JUSTICE ARNOLD, January 7, 1957:
Defendant appeals from entry of judgment for plaintiff on the pleadings upon its motion under Pa. R.C.P. 1034.
As contended by defendant, on such a motion we must accept as true all facts well pleaded and inferences reasonably deducible therefrom; and judgment should be entered only where it is clear that no meritorious legal defense is raised: Toff v. Vlahakis, 380 Pa. 512, 514, 112 A.2d 340. So considered, the instant
By its pleadings, defendant raises the defense of failure of consideration. Failure of consideration occurs where the consideration bargained for does not pass, either in whole or in part, to the promisor. This is not the instant case. The pleadings admit receipt of the parts and aver only that they "were obsolete, useless and otherwise unfit to be used." The notes were given in payment of the balance due for the parts admittedly delivered some five months previously.
Obviously defendant must rely on a breach of vendor's warranty as to quality or fitness, rather than failure of consideration, as a defense to the action: Its pleadings seek to establish only that the quality, grade or nature of the parts was not as it should have been. Defendant contends, however, that the Sales Act of
Section 49 of the Sales Act, 69 PS § 259, provides that notice of breach of warranty must be given, and that it must be ". . . within a reasonable time after the buyer knows or ought to know of such breach . . ." (Italics supplied). Considering the telephone conversation between the parties as notice of breach of warranty, there remains a question whether it was given within a reasonable time after acceptance of the goods or within a reasonable time after defendant "ought to know of such breach."
"What is a reasonable time is a question of fact for the jury; but where the facts are undisputed, and but one inference can be drawn therefrom as to reasonableness, the question becomes one for the court": Tinius Olsen Testing Machine Co. v. Wolf Co., 297 Pa. 153, 157, 158, 146 A. 541. Thus, in the instant case, the question is for the court to determine. The parts, purchased for $30,271.46, were to be used in a dragline purchased for "an amount in excess of $100,000.00." They were delivered on April 25, 1948; approximately one-third of the purchase price for the parts had been paid in June and August, 1948; and on January 26, 1949, for the first time defendant complained of the
Certainly the condition, quality, or type of the parts could have been determined by the casual inspection of an experienced individual. In any event, we cannot but conclude that there was delay of inspection, or that, inspection being had, defendant delayed in giving plaintiff notice of discovered defects. In either event, the passage of such time between delivery of parts or delivery of the notes, and the giving of notice, was as a matter of law an unreasonable time. Under the circumstances, defendant ought to have known of alleged defects much in advance of the day it gave notice, and it did not satisfy the test of reasonableness required by the Act. Cf. Aaron Bodek & Son v. Avrach, 297 Pa. 225, 146 A. 546; Bradford Gasoline Company v. Hanley Company, 315 Pa. 441, 173 A. 401; and see Williston on Sales, Vol. 2, § 384. To hold otherwise would not permit the required finality in the sale of goods.
Mr. Justice MUSMANNO dissents.