The opinion of the court was delivered by: CLARY
This is an action to recover damages for an alleged breach of a written contract. By the terms of the contract defendant was to supply plaintiff with 55 tons of pure MF Kraft paper in two lots, one of 33 tons and the other of 22 tons. Both plaintiff and defendant were middlemen. Plaintiff sold the paper to Topic & Nell, a South African customer, who intended to manufacture paper bags with it. Defendant purchased the paper from Lansdowne Paper Mill, Inc., who was to manufacture the paper. The defendant herein joined Lansdowne as third-party defendant, alleging that if the defects complained of in the paper did in fact exist, they constitute a breach of the contract under which the defendant purchased the paper from the third-party defendant and, therefore, defendant is entitled to recover from said third-party defendant everything which the plaintiff may recover from the defendant. From the pleadings and proof I make the following
1. The plaintiff is a corporation organized under the laws of the State of New York, having its principal office at 300 Fourth Avenue, New York 10, New York.
2. The defendant, Maurice Denenberg, individually and trading as Denny Paper & Board Co., is a citizen of the Commonwealth of Pennsylvania, residing in the City of Philadelphia, State of Pennsylvania, with his office and place of business at 20th and Washington Streets, Philadelphia, Pennsylvania.
3. The matter in controversy exceeds, exclusive of interest and costs, the sum of $ 3,000.
4. The plaintiff company is in the business of exporting paper and pulp from the United States and Canada; the defendant is a paper broker.
5. During August of 1951, because of the Korean War, paper supplies were extremely scarce and plaintiff was anxious to obtain a source of supply to fill orders it had on hand.
6. On August 17, 1951 the defendant visited the office of the plaintiff in New York City and exhibited a number of samples of paper to Thomas S. Greiner, Vice-President of the plaintiff company. He stated that he could supply said paper in large quantities.
7. After examining the samples and being satisfied that they generally met the standards required for an order which the plaintiff had from Topic & Nell, a South African customer, Mr. Greiner negotiated a contract with the defendant, wherein plaintiff agreed to buy and defendant agreed to sell 55 tons of pure MF Kraft paper in portions of 33 tons and 22 tons for the price of $ 14.50 per 100 lbs. ($ 290 per short ton). Samples were to be submitted for approval.
8. The following provisions of the contract are pertinent to this litigation:
Quality: Pure MF Kraft Paper, samples to be submitted for approval.
Quantity: 55 tons/2000 lbs. each.
Specifications: 33 tons basis 24 X 36' 35 lbs/500 width of rolls 21'-21'-18' 22 tons basis 24 X 36' 39 lbs/500 width of rolls 26 3/4-26 3/4-26 3/4
All rolls diameter not to exceed 28', core 3'.
Packing: Rolls must be hard and evenly wound, cores fitted with pierced wooden plugs, Rolls Must be securely wrapped and capped with heavy mill wrappers.
9. On August 21 1951 the defendant ordered the 55 tons of paper needed for the order from Lansdowne Paper Mill, Inc.; the contract between defendant and Lansdowne contained exactly the same specifications and requirements as the contract between plaintiff and defendant.
10. On August 23, 1951, the defendant personally delivered several sheets of a sample to Mr. Greiner.
11. Mr. Greiner, in the presence of the defendant, examined the sample and tested the bursting strength of several sheets of the paper by the use of a Mullen testing machine.
12. The results of these tests showed the bursting strength of the sample to be 27 lbs. and 31 lbs. per square inch on one sheet and 21 lbs., 26 lbs., 29 lbs. and 30 lbs. per square inch on another sheet.
13. Being satisfied with the results of his examination, Mr. Greiner approved the sample; he also agreed, at the request of the defendant, that the color of the paper to be furnished might be of a darker shade.
14. On August 24, 1951, plaintiff sold the aforesaid paper to Topic & Nell, Port Elizabeth, South Africa, at the price of $ 320 per short ton.
15. In accordance with shipping instruction, the 33 tons portion of the paper (to be exact 66,708 lbs.) was shipped in 228 rolls directed to the S.S. African Star port of loading, Philadelphia, Pennsylvania, on September 11, 1951.
16. By mail on September 20, 1951, the plaintiff received the outturn samples from the defendant. Outturn samples are samples taken at random from the rolls during the manufacturing of the paper.
17. Mullen tests of these samples by Mr. Greiner showed the bursting strength of the outturn samples to be 17 lbs., 21 lbs., and 24 lbs. per square inch. In further comparing the outturn sample with the original sample it appeared to the eye that while the fiber formation of the original sample was long, parallel and even throughout the paper, the formation of the outturn sample was 'wild', that is, it ran in all directions, the fiber was heavy in certain areas and all but lacking in other areas. To the touch the body of the outturn sample was different ...