instructions to the effect that all payments were to be made directly to the defendant's office.
31. On and after April 14, 1947 all money received at Cross' plant in payment of invoices was turned over to the defendant.
32. No more shipments of cattle or livestock were received by Cross after April 14, 1947.
33. On or about April 22, 1947 all inventory of meat and by-products had been sold and the plant was closed.
34. On or about May 14, 1947, an involuntary petition in bankruptcy was filed against Cross in New Jersey.
35. On April 4, 1947 Cross' inventory of slaughtered and unslaughtered cattle on their premises amounted to $ 117,119.
36. On April 5, 1947 Cross was indebted to the defendant on receivables for $ 95,744.15 and on inventory for $ 95,020.32, or a total indebtedness of $ 190,764.47.
37. On April 10, 1947 Cross slaughtered the April 3rd shipment of cattle which had a dressed weight of 16,563 pounds of beef.
38. On April 14, 1947 when the defendant placed its employees in Cross' plant, at least three-fourths of the beef from the April 3rd shipment of cattle and all of the cattle from the April 7th shipment were on hand in Cross' plant.
39. On April 14, 1947 the defendant knew that the April 3rd and 7th shipments of cattle had not been paid for, and knew, or should have known, that the aforementioned beef and cattle from these shipments were on hand.
40. April 14 and 15, 1947 Cross slaughtered the April 7th shipment of cattle which had a dressed weight of 30,377 pounds of beef.
41. On April 15, 1947 Cross, at the direction of the defendant, returned 47 calves to a seller in Virginia because they were not paid for, and because it might have taken a long time to dispose of the meat and by-products.
42. Between April 14 and May 19, 1947, the defendant collected $ 103,316.87 in receipts from the sale of Cross' products.
43. The beef in the April 3rd and 7th shipments sold for at least an average price of $ 0.42 per pound, and the by-products from the April 7th shipment sold for at least $ 22.87 per steer.
44. Of the amount the defendant collected between April 14 and May 19, 1947, at last $ 5,217.35 was from the sale of beef from the April 3rd shipment, $ 12,757.34 from the sale of beef from the April 7th shipment, and $ 983.41 from the sale of the by-products of the April 7th shipment. Thus, at least $ 18,958.10 of the receipts collected during this period were from the meat and by-products of the April 3rd and 7th shipments of cattle.
45. At no time did any of the defendants' employees or agents tell any of Cross' employees or agents that the defendant would pay the plaintiffs for the April 3rd and 7th shipments of cattle.
46. The plaintiffs have not been paid for the April 3rd and 7th shipments of cattle.
This has been and is a very perplexing case. The testimony is replete with contradictions; almost every witness either contradicted himself outright or by his demeanor on the witness stand made his testimony incredible to some degree. Even each side's theory of the case is in itself inconsistent at some point.
The above findings of fact represent the situation as proved by the credible evidence and admissions.
Cross, individually, was manipulating his financial dealings so that somebody, not Cross, was going to be stuck for the price of these cattle. Mr. Zeidman suspected Cross' financial embarrassment and double dealings before the plaintiffs knew anything was amiss.
When the defendant received Cross' check dated April 5, 1947, and was notified about the April 3rd and 7th shipments of cattle, its relationship with Cross was being strained to the breaking point. Zeidman reasoned that if the check was good, he would then continue to make advancements under the agreements of January 28, 1946, meanwhile hoping for restitution of the converted receipts, but at the same time holding over Cross' head the club of cancelling these agreements and forcing the assignment of all invoices and receipts. However, if the check was bad, then he would immediately cancel these agreements and force such an assignment. As it turned out, the check was bad, the defendant advanced nothing, but collected most, if not all, of these receipts.
The problem is not before me as to whether all the receipts collected by the defendant between April 14 and May 19, 1947 should be turned over to the Trustee in Bankruptcy. However, the plaintiffs cannot recover that part of those receipts which came from the beef and by-products of the April 3rd and 7th shipments. Under Section 19 of the Uniform Sales Act, which has been adopted by Illinois, Ill. Rev. Stat. 1949, c. 121 1/2 , Sec. 19, New Jersey, N.J.S.A. 46:30-25, and Pennsylvania, 69 P.S. 143, title to that cattle passed to Cross, and the plaintiffs became unsecured creditors of Cross having no lien or rights against that merchandise or the proceeds therefrom.
the plaintiffs' theory of recovery was a third party beneficiary contract based upon alleged promises made by Zeidman to Cross that the defendant would pay the plaintiffs. An examination of the testimony does not justify, to my mind, a finding that these alleged promises were ever made.
It is inconceivable to think that Zeidman would promise to pay 100% of the purchase price of the April 3rd shipment when at a conference Zeidman complained that Cross had converted receipts due Zeidman. At the same time Cross had just handed Zeidman a check dated April 5 for 25%. Zeidman was suspicious of Cross' good faith and wanted to await clearance of Cross' check. The check was never paid.
The defendant's employee had been given the run around by Cross and denied access to Cross' books. It seems unlikely that under such circumstances the defendant would agree to pay for the cattle.
The plaintiffs never had any contact or business dealings with the defendant prior to the institution of this action.
Since the plaintiffs have not proved these alleged promises of the defendant to Cross by a preponderance of the evidence, there is no third party beneficiary contract capable of enforcement, and judgment must be for the defendant.
Conclusions of Law.
1. This Court has jurisdiction of this case.
2. The defendant did not enter into a contract with Louis A. Cross Company wherein the defendant promised Louis A. Cross Company to pay the plaintiffs direct for the shipments of cattle on April 3 and 7, 1947.
3. The plaintiffs' complaint is dismissed, and judgment is entered for the defendant.