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SILVERMAN v. SAMUEL MALLINGER CO. (11/09/53)

November 9, 1953

SILVERMAN, APPELLANT,
v.
SAMUEL MALLINGER CO.



Appeal, No. 148, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, April T., 1950, No. 2701, in case of Alvin Silverman, trading as Howard's Food Products v. Samuel Mallinger Co., Knox Glass Associates, Inc., and Oil City Glass Bottle Company. Judgment affirmed; reargument refused December 15, 1953.

COUNSEL

Harold R. Schmidt, with him John L. Laubach, Jr., and Rose, Rose & Houston, for appellant.

Drayton Heard, with him David Glick and Heard & Heard, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.

Author: Chidsey

[ 375 Pa. Page 423]

OPINION BY MR. JUSTICE CHIDSEY

This is an action in assumpsit for damages brought by Alvin Silverman, trading and doing business as Howard's Food Products, hereinafter called Silverman, for alleged breach of an express warranty. Plaintiff pleaded three alternative causes of action: (1) against Samuel Mallinger Co., a corporation, hereinafter called Mallinger, averring a sale to the plaintiff by Mallinger in its own behalf, with an express warranty by Mallinger in its own name, (2) against Knox Glass Associates, Inc., hereinafter called Knox, averring a sale to plaintiff by Mallinger as agent of a disclosed principal, Knox, with express warranty of Knox by its agent Mallinger, (3) against Oil City Glass Bottle Co., hereinafter called Oil City, averring a sale to plaintiff by Mallinger as agent of an undisclosed principal, Oil City, with express warranty of Oil City by its agent Mallinger.

Prior to August 8, 1948 the plaintiff, who was in the pickle business, used exclusively glass jars manufactured by Tygart Valley Glass Co. On August 8, 1948 he purchased from Mallinger, through its duly authorized representative, Emanuel Mallinger, the glass jars in question.

At the outset it is important to note the procedure by which the sale was executed. Mallinger upon receiving the order from the plaintiff, purchased the jars from Knox, which is the sole sales agent of Oil City, the manufacturer of the jars. Oil City shipped the jars directly to the plaintiff and Knox invoiced Mallinger, who in turn invoiced the plaintiff directly.

The shipment arrived at the plaintiff's plant on the morning of August 9th, where is was put into immediate use on the plaintiff's production line. The washed pickles were placed in the jars, which were capped by machine and put into retort crates and then cooked

[ 375 Pa. Page 424]

    at high temperatures so as to finish and pasteurize the pickles. After this the finished pickles in jars were cooled, placed in cardboard cartons and thereafter were inverted and stored. An unusually high amount of breakage of glass occurred during the packing of the raw pickles in the glass and also in the cooking process. The breakage was immediately reported by telephone to an officer of Mallinger who told plaintiff to continue to use the glass and defendant Mallinger would take care of the damages caused by the breakage,

Subsequent to this it was discovered that the jars in question leaked and had caused damage to other stored jars. Plaintiff set forth damages amounting to $5,384.25 in his complaint and Mallinger filed a counterclaim seeking to recover from the plaintiff the sum of $720, the sales price for the jars purchased by the plaintiff. The jury returned a verdict in favor of plaintiff against Knox in the amount of ...


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