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MURPHY LABS., INC. v. EMERY INDUS.

February 9, 1951

MURPHY LABORATORIES, Inc.
v.
EMERY INDUSTRIES, Inc.



The opinion of the court was delivered by: FOLLMER

This is an action for damages for breach of warranty. This case was tried before the Court, without a jury, and the parties were represented by counsel. Based upon the oral testimony, exhibits, documentary evidence and admissions of the parties by their pleadings and in open Court, and in compliance with Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., I find the facts specially and state my conclusions of law as follows:

 1. Murphy Laboratories, Inc., (hereinafter referred to as 'Murphy') a Pennsylvania corporation with its principal place of business at Clifton Heights, Delaware County, Pennsylvania, was, at all times pertinent herein, engaged in the manufacture of pine jelly soap.

 2. Emery Industries, Inc., (hereinafter referred to as 'emery') an Ohio corporation with its principal place of business at Cincinnati, was, at all times pertinent herein, engaged in the manufacture of chemicals, among which are various types of oleic acid.

 3. Pine jelly soap is a soft jelly like substance used for household and commercial cleaning purposes.

 4. Beginning in the Fall of 1945, Emery sold to Murphy an oleic acid known as Emery 0-20, which the latter used for approximately one year in the making of its pine jelly soap, apparently with complete satisfaction.

 5. This acid was made from the fat of animals which by the late Summer of 1946 became increasingly scarce, in consequence whereof Murphy bought other kinds of oleic acids from Emery, which it mixed with 0-20 in the making of its soap, again with apparently satisfactory results.

 6. During the month of September 1946, Ritz, the Philadelphia sales representative of Emery, brought to Murphy's attention an Emery oleic acid product known as 0-442 which was available, whereupon Murphy agreed that Ritz should send it a trial order.

 7. Emery shipped to Murphy, by invoice dated September 25, 1946, five drums of 0-442, and by invoice dated October 7, 1946, three drums of 0-442.

 8. The 0-442 grade of oleic acid was made from vegetable sources.

 9. Ritz did not know the formula which Murphy used in the manufacture of its pine jelly soap.

 10. Murphy used the trial order of 0-442, and by invoice dated October 8, 1946, purchased a tank car of 8000 gallons of the same product at a cost of $ 9,303.47, which was paid October 31, 1946.

 11. Thereafter the following purchases of 0-442 were made of Emery by Murphy,

 Invoice dated November 14, 1946, 35 drums, $ 4,469.44

 Invoice dated January 6, 1947, 20 drums, $ 2,558.24

 Invoice dated January 31, 1947, 15 drums, $ 1,906.66, all of which were paid respectively on November 27, 1946, April 15, 1947, and April 30, 1947.

 12. Approximately thirty to sixty days after using 0-442, or about the middle of November 1946, Murphy began to get complaints from its customers that its soap was separating so that a ...


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