Appeal, No. 15, March T., 1950, from judgment of Court of Common Pleas of Butler County, Sept. T., 1949, No. 187, in case of Robert W. Kirchner, trading as Model Dairy, v. Oscar R. Olson et al. Judgment affirmed.
Lee C. McCandless, for appellant.
Luther C. Braham, with him Galbreath, Braham & Gregg and Bowman, Hanna & Middleton, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE JONES
This is an appeal by the corporate defendant from a judgment for the plaintiff on a jury's verdict for moneys claimed to be due under an oral contract. The
error assigned is the lower court's refusal of the defendant's motion for a new trial. The following are the facts which the jury presumably accepted and upon which the merit of the appeal must be determined.
The plaintiff, operating under a trade name, conducted a dairy business in Bowling Green, Ohio. The defendant corporation carried on a like business in Butler, Pa. In July 1947, the defendant desired to sell milk in paper containers rather than in glass bottles, but the filling of paper containers with milk required the use of a machine which the defendant could not then obtain. The plaintiff had such a machine and, at the defendant's request, agreed orally to process milk and put it in paper containers at the plaintiff's place of business in Ohio and deliver it, so packaged, to the defendant in Butler. At that time, there were only about five companies in the country which manufactured such paper containers and those companies were alloting their product exclusively to dairies which possessed the machines needed to fill the containers. It was therefore necessary for the plaintiff to obtain containers for use in delivering milk to the defendant as contemplated by the agreement. A representative of the defendant company asked the plaintiff to obtain a truck load of containers (with no name or markings on them) which the plaintiff did at a cost to himself of $2,809.31.
According to the plaintiff's testimony, the agreement did not call for the sale and delivery of any specific quantity of milk nor was it to last for any definite period of time. He had been told by the defendant that it would be at least six weeks until they got their own machine and that they would need about 6,000 quarts of milk a day. On that prospective basis, the supply of containers obtained by the plaintiff for the defendant's service would not have been too great. However, the defendant terminated the agreement after the plaintiff had delivered to the defendant only 30,667 quarts of
milk in the packaging whereof the plaintiff had used but $294.83 worth ...