Dairymen's Co-Operative Sales Association v. McCreary

• Decision Date: 28 September 1938
• Docket Number: 50-1938
• Citation: 1 A.2d 508,132 Pa.Super. 524
• Parties: Dairymen's Co-operative Sales Association, Appellant, v. McCreary
• Court: Pennsylvania Superior Court

1 A.2d 508

132 Pa.Super. 524

Dairymen's Co-operative Sales Association, Appellant, v. McCreary

No. 50-1938

Superior Court of Pennsylvania

September 28, 1938

Argued April 21, 1938.

Appeal from judgment of C. P. Beaver Co., Dec. T., 1935, No. 149, in case of Dairymen's Co-operative Sales Association v. H V. McCreary.

Assumpsit. Before Wilson, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for defendant on counterclaim. Plaintiff appealed.

Errors assigned, among others, were refusal of motions for judgment n. o. v. and for a new trial.

Judgment reversed, with a venire.

A. E Kountz, with him C. A. Fry, of Kountz & Fry, and Graham &amp Dilley, for appellant.

No appearance was made, nor brief filed for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.

OPINION

Rhodes, J.

Plaintiff brought this action in assumpsit against defendant to recover for milk sold and delivered to defendant. Plaintiff is a corporation, engaged in the selling of milk produced by about 14,000 members or dairy farmers to about 100 milk dealers or distributors. Defendant was a retail dealer, who, on October 21, 1932, signed a contract with plaintiff by the terms of which he was to buy his milk supply from plaintiff at prices determined by various provisions of the contract. To the plaintiff's statement, defendant filed an affidavit of defense in which he admitted the correctness of plaintiff's computations, but disclaimed liability on the basis of a counterclaim. Defendant, in his counterclaim, averred that plaintiff violated its contract with defendant by allowing certain companies named, and others unknown, rebates on the milk purchased by them under contracts with plaintiff; that plaintiff permitted other dealers to sell milk to consumers or to other retail dealers at prices below those established by plaintiff; that, in order to meet competition of others operating under buyer's agreements with plaintiff, defendant was compelled to sell at prices whereby he sustained a loss of 46 cents per hundredweight of all milk purchased from plaintiff and sold to consumers from November 1, 1932, to April 1, 1934; that defendant notified plaintiff that he would require plaintiff to assume 20 cents per hundredweight of the loss sustained by him. Plaintiff filed a reply. Amendments to the affidavit of defense and counterclaim were filed shortly before trial, which had the effect of changing the word "members" in the original counterclaim to "parties operating under buyer's agreements." Defendant was not a member of plaintiff association.

The jury returned a verdict for defendant for the excess of defendant's counterclaim over the amount of plaintiff's demand. Plaintiff's motions for judgment n. o. v. and for a new trial were dismissed by the court below, and judgment entered on the verdict. Plaintiff has appealed.

A counterclaim is regarded as defendant's statement of claim (Act of May 14, 1915, P. L. 483, § 15, as amended, Act of April 22, 1929, P. L. 627, § 3, 12 PS § 451; Riling v. Idell et al., 291 Pa. 472, 140 A. 270), and the averments therein must be as certain and specific as those in a statement of claim (Michelin Tire Co. v. Schulz, 295 Pa. 140, 145 A. 67). See National Cash Register Co. v. Ansell et al., 125 Pa.Super. 309, 189 A. 738. The trial proceeded on the theory of an alleged breach of contract on the part of plaintiff, for which breach defendant sought to recover resulting damages. This was the expressed view of both the trial judge and defendant's counsel.

The burden was on defendant to establish a prima facie case, but this was not accomplished by the introduction of evidence that had no relevancy to the issues being tried. Much testimony was admitted over objection of plaintiff's counsel that was clearly inadmissible.

It appears from defendant's own testimony that any loss which he sustained in his operations was due to a price war with which plaintiff was in no way connected. Those who were responsible for the competition which defendant alleged that he was obliged to meet were not even customers of plaintiff. "The damages ordinarily recoverable are those necessarily following the breach, which the party guilty of the breach must be presumed to know would be the probable consequence of his failure: 2 Greenl. Ev. § 253. This rule is well expressed by Strong, J., in Adams Express Co. v. Egbert, 12 Casey 364. They must be a proximate consequence of the breach, not merely remote or possible. There is no measure for losses of the latter kind": Pittsburg Coal Co. v. Foster et al., 59 Pa. 365, at page 369. See, also, Fleming v. Beck, 48 Pa. 309; McConaghy v. Pemberton & Co., 168 Pa. 121, 31 A. 996.

Plaintiff did not...