Provisor v. Albert Parvin & Co.

WILSON, J. Action for money had and received. Judgment for plaintiff. Defendant appeals.

Cross-defendant Sun Glow Industries, Inc., assignor of plaintiff, is a manufacturer of furniture. Defendant Albert Parvin & Company is engaged in the business of designing, distributing and selling furniture to the hotel trade. In November, 1946, Parvin & Company placed an order with Sun Glow for 190 dressers to be manufactured according to designs and specifications submitted by Flamingo Hotel of Las Vegas, Nevada. The agreed purchase price was $6,612 f.o.b. Sun Glow’s factory at Logan, Ohio, less a 2 per cent discount amounting to $132.24. It was agreed that Parvin would furnish and pay for the lacquers to be used in finishing the dressers and specially fabricated.plastic drawer pulls to be attached to them. Parvin furnished lacquers of the value of $608.75, and drawer pulls costing $2,898.56. Sun Glow-manufactured the dressers and shipped them to Flamingo. The latter paid freight, cartage and handling charges amounting to $1,550. Parvin promptly paid Sun Glow the agreed purchase price less 2 per cent amounting to a net of $6,479.76. The dressers were defectively manufactured and Flamingo refused to accept them. Parvin notified Sun Glow of such rejection.

At a meeting of the presidents of the two corporations, Parvin and Sun Glow, in Parvin’s Chicago office on March 24, 1947, an agreement was reached which was reduced to writing in the form of a letter to Parvin signed by Sun Glow reading as follows:

“March 24, 1947.

“Albert Parvin & Company

5 South Wabash Avenue

Chicago, Illinois

Gentlemen:

“This will confirm agreement reached this day between the undersigned and your company, regarding the one hundred [716]ninety (190) dresser bases shipped by ns to your account, The Flamingo Hotel, at Las Vegas, Nev., which dressers we understand were not made up satisfactorily. These are the dressers covered by our invoice No. 1485, dated January 22, 1947.

“We hereby agree to refund to you the entire cost of these dressers and will hold you harm free against any loss. We are notifying our coast representative to dispose of these dressers, and should he do so within thirty (30) days from this date, we will send you a check for the full purchase price paid by you. Should our representative fail to dispose of these dressers by April 25, 1947, you are then authorized to sell said dressers for our account and we, in turn, will reimburse you for any loss sustained between your original cost and the amount realized from the proceeds of sale.