Appeal, No. 85, Jan. T., 1951, from judgment of Court of Common Pleas of Lackawanna County, May T., 1948, No. 818, in case of Brookside Distilling Products Corporation v. Monarch Wine Company of Georgia. Judgment affirmed.
John W. Bour, with him Carlon M. O'Malley, for appellant.
Raymond A. Speiser, with him Speiser, Satinsky, Gilliland and Packel, and Joseph T. McDonald, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Brookside Distilling Products Corporation, appellant, instituted this action in assumpsit to recover the amount paid by it for a quantity of wine ordered from and shipped by Monarch Wine Company of Georgia, appellee, contending that the wine supplied did not comply with Pennsylvania Liquor Control Board standards. At the trial, a jury returned a verdict for Monarch Wine Company. Brookside Distilling Products Corporation moved or a new trial, assigning as the principal error, the instruction of the trial judge that if the appellant made no test or no adequate test of the wine within a reasonable time of receipt thereof, it lost the right to recover. This appeal is from the order of the court en banc dismissing appellant's motion for a new trial and entry of judgment on the verdict.
Appellant is engaged in the business of buying finished wine in bulk, bottling it, and reselling it to the Pennsylvania Liquor Control Board, hereafter referred to as the Board. The specifications of the Board establish certain maximums for the amounts of volatile acidity and sulphur dioxide in wines. Wines containing an excess of either acetic acid or sulphur dioxide are not acceptable to it. Appellee is a manufacturer, buyer, and seller of finished wines, which it sells throughout the United States.
Appellant, on February 6, 1948, by letter, confirmed a telephone conversation of even date with appellee, ordering one 6,000 gallon tank car of blackberry wine to be delivered in accordance with shipping instructions. The wine was put into the tank car by appellee
on February 12, 1948, at which time it was tested for total acids, alcohol, volatile acidity, and sulphur dioxide, and found to conform to the Federal regulations, which are the same as the Pennsylvania regulations. The wine arrived at appellant's plant on February 24, 1948, where it was tested for alcohol and sulphur dioxide only. These tests indicated the wine conformed to the established standards in these respects, but no test was made to determine the volatile acidity.
The wine was drawn from the tank car through appellant's hoses into an 8,000 gallon tank in its plant. On February 25th there were bottled 350 cases of 4/5 quarts; on February 26th, 347 cases of 4/5 quarts; on February 28th, 949 cases of half gallons; on March 11th, 302 cases of half gallons; and, on March 12th, 383 cases of half gallons. When the first 2,000 gallons had been bottled, the remaining 4,000 gallons were drawn through hoses from the 8,000 gallon tank into two 2,000 gallon tanks and there stored until bottling was resumed on March 11th.
The bottled wine was shipped to the Board warehouse in Scranton, Pennsylvania, in several shipments under dates of March 8th, 12th, 13th, 15th, and 20th. On March 16th, pursuant to regular procedure, a half gallon jug of wine bottled by appellant on March 12th, was analyzed in the Board laboratory by one of the Board's chemists and found to exceed the maximum standards of the State with respect to ...