Milk Adm'r v. Holloway

• Decision Date: 21 February 1945
• Citation: 41 A.2d 791,131 Conn. 616
• Court: Connecticut Supreme Court
• Parties: HAMMERBERG, Milk Adm'r, v. HOLLOWAY et al.

131 Conn. 616

41 A.2d 791

HAMMERBERG, Milk Adm'r,

v.HOLLOWAY et al.

Supreme Court of Errors of Connecticut.

Feb. 21, 1945.

Appeal from Superior Court, Hartford County; McEvoy, Judge.

Action by Donald O. Hammerberg, Milk Administrator, against Frank S. Holloway and others for an injunction to compel defendants to comply with a certain ruling of plaintiff, brought to the Superior Court in Hartford County and tried to the court. From a judgment determining that the order was in compliance with law and that defendants pay to their producers, through the office of the plaintiff, the sum of $1893.10, defendants appeal.

Error and case remanded with direction.

George F. Hanrahan and Donald C. McCarthy, both of Hartford, for appellants (defendants).

Thomas J. Conroy, Asst. Atty. Gen., and Jack Rubin, of Hartford (Francis A. Pallotti, Atty. Gen., on the brief), for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

The plaintiff as milk administrator had judgment that the defendant milk dealers pay their producers additional sums through his office. The major part of the judgment resulted from the allowance of a claim that the milk furnished by the producers contained more butterfat than the amount upon which payments made to them by the defendants had been based, as shown by tests ordered by the plaintiff. The defendants appealed on the principal grounds that the tests were unfair, illegal and did not give the correct result. Stipulations were made during the trial and included in the finding which materially narrowed the issues. These stipulations may be summarized as follows:

The defendants are producers of and dealers in milk. They appeal in the latter capacity. The plaintiff is the duly appointed, qualified and acting milk administrator, who properly brought this action under General Statutes, Supp.1941, § 344f(a). He issued Order No. 1, effective October 1, 1941, and amendments thereto by authority of §§ 337f and 338f, after compliance with the statutory requirements, and the defendants took no appeal therefrom nor do they contest its validity. This order contained the following provisions:

‘Article VI. Payments to producers.

‘B. Butterfat Differential. If any dealer has received from any producer, during the delivery period, milk having an average butterfat content other than 4.0 percent, such dealer, in making payments pursuant to Section A of this Article, shall add to the uniform price for such producer for each one-tenth of 1 percent of average butterfat content in milk above 4.0 percent not less than, or shall deduct from the uniform price for such producer for each one-tenth of 1 percent of average butterfat content in milk below 4.0 percent not more than, 4 cents per hundredweight. If the dealer does not determine the butterfat content of milk received from producers the average butterfat content of a producer's milk shall be considered to be that determined by a test performed by the Dairy and Food Commission made during a period not longer than 3 months before the first day of such delivery period. In the absence of such a test the milk or such producer shall be considered to contain 4.0 percent of butterfat.

‘F. Adjustment of errors in payments. Whenever verification by the Administrator of the payment to any producer for milk delivered to any dealer discloses payment to such producer of less than the amount required by this Article, the dealer shall pay such difference to the producer not later than the time of making payment next following such disclosure.’

The plaintiff made an audit of the books of the defendants from October, 1941, to November 1942, both inclusive, which resulted in a determination that the producers were entitled to certain payments, the principal item in which, and the only one in dispute, was the sum of $1556.58, based on butterfat differentials. The defendants claimed that the tests on which this figure was based were unfair and illegal.

In accordance with Order No. 1 as amended, the plaintiff used the results of tests made by the dairy and food commission as determinative of the butterfat content of the milk. Samples of the milk furnished the defendants by their producers were taken by inspectors of the dairy and food commission on the following dates: November 25, 1941, and March 5, May 25, June 23, July 20, August 19, September 9, October 20, and November 18, 1942, with the exception of the milk of one producer, whose product was sampled on July 24, 1942, rather than on July 20, 1942. All samples so taken were tested within twenty-four hours in the laboratory of the dairy and food commission by the Babcock method for testing butterfat, which method is a standard test for determining butterfat content and the most practical test for that purpose known in the milk industry. The results of the tests made in November, 1941, were...