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MILLAR BROS. & CO. v. ARMOUR & CO.

October 9, 1956

MILLAR BROS. & CO., Inc.,
v.
ARMOUR AND COMPANY (a corporation)



The opinion of the court was delivered by: KRAFT

In this action plaintiff seeks damages from the defendant for breach of a contract of sale. From the evidence we make the following

 1. Plaintiff, Millar Bros. & Co., Inc., is a Pennsylvania corporation engaged in the wholesale distribution of meat products.

 2. Defendant, Armour and Company, is an Illinois corporation principally engaged in business as a meat packer in Chicago, Ill.

 3. In early September 1951, Mr. Hess of Hess-Stephenson Co., meat brokers of Chicago, Ill., telephoned from Chicago to Philadelphia and informed Mr. Arnold Zitin, then an officer of plaintiff corporation, that defendant had a lot of fresh pork trimmings for sale. After discussion, plaintiff, by its officer Arnold Zitin, instructed Mr. Hess to buy 21,000 to 25,000 pounds of fresh pork trimmings at $ .25 3/4 per pound, the price to include freight charges.

 4. Written confirmation of the sale was sent to plaintiff on September 13, 1951, upon Hess-Stephenson's confirmation form No. 63204 setting forth the purchase by plaintiff of 21,000 to 25,000 pounds of fresh regular pork trimmings at $ .25 3/4 C.A.F. Philadelphia, sight draft bill of lading Corn Exchange Bank, shipment Thursday, September 20, 1951.

 5. The procedure then normally employed by defendant in preparation of fresh pork trimmings was as follows: After slaughter, the hog carcasses were placed in a cooling room with temperature between 32 degrees and 38 degrees; after one or two days they were removed to make the primal cuts which resulted, among other things, in pork trimmings; the trimmings were thereafter packed in barrels and placed in a freezer with temperatures between 28 degrees and 32 degrees where the trimmings remained twelve to fourteen hours or until the next day when they were taken to an enclosed area one floor below and about 400 yards from the freezer for loading purposes.

 6. The evidence fails to show how the trimmings sold to plaintiff were prepared and does not establish that the normal preparation procedure was followed.

 7. The normal loading procedure was to ice and brine the railroad car twenty-four hours in advance of loading; to take temperature readings before and after loading; to top off and add dry ice to the ice bunkers after loading for quick temperature reduction and to close, seal and deliver the car to the Chicago Junction Railroad.

 8. The pork trimmings were delivered to Chicago Junction Railroad in car ARLX 11290 packed in 86 barrels stacked in rows two high and four wide.

 9. This car was delivered by Chicago Junction Railroad to Baltimore and Ohio Railroad in Chicago, Ill. at 4:15 P.M., September 20, 1951, and arrived at Philadelphia at 7:24 A.M., September 22, 1951.

 10. In transit this car was

 (a) re-iced with 1600 pounds of ice and 128 pounds of salt at Willard, Ohio, at 4:00 A.M., September 21, 1951;

 (b) re-iced with 1500 pounds of ice and 120 pounds of salt at Cumberland, Maryland, at 8:19 ...


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