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November 13, 1956


Appeal, No. 110, Oct. T., 1956, from judgment of Court of Common Pleas of Blair County, Jan. T., 1953, No. 75, in case of Julius Halpern and Bernice Halpern, individually and trading and doing business as Imperial Products Co. v. Western Pennsylvania Chemical Company, Inc. Judgment affirmed.


Martin Goodman, with him Alexander A. Notopoulos, for appellant.

T. Dean Lower, Esq., for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Ervin

[ 182 Pa. Super. Page 355]


This appeal is from the refusal of the court below to grant defendant's motion for a new trial after a verdict in favor of the plaintiffs in an action in assumpsit to recover damages for breach of a contract for the manufacture and sale of ammonia products.

Plaintiffs are engaged in the business of manufacturing chemicals and chemical products in Philadelphia, Pennsylvania. On Wednesday, August 20, 1952

[ 182 Pa. Super. Page 356]

Janet M. Stewart, office manager of the defendant, Western Pennsylvania Chemical Company, located in Altoona, Pennsylvania, called Julius Halpern, the owner and manager of Imperial Products Co., on the telephone to inquire about prices of certain ammonia products required by the defendant to fulfill a contract defendant held to supply the Commonwealth of Pennsylvania. After two telephone conversations between Miss Stewart and Julius Halpern in which Miss Stewart informed Halpern that defendant was in immediate need of the ammonia to fulfill their own contract requirements and discussion concerning prices and delivery or pick-up arrangements Halpern testified Miss Stewart concluded the second conversation by saying "O.K. we will send you an order." Under date of August 21, 1952 prices and terms were confirmed by letter from Halpern to defendant and under date of August 22, 1952 plaintiffs received Purchase Order No. A-1765 from the defendant requesting that an order be entered for immediate release from plaintiffs' plant, specifying in detail the quantities of aqua ammonia desired, outlining pick-up arrangements and advising manufacturing specifications. Later plaintiffs received a letter from defendant dated August 26, 1952 advising that it was necessary for defendant to cancel its purchase order No. A-1765 covering the aqua ammonia. There is considerable conflict in the testimony concerning an alleged demand by Halpern for a $500.00 advance payment on the order. Halpern testified he made mention of a $500.00 payment to Miss Stewart in their initial telephone conversation on Wednesday, August 20, and that she said she would see to it that a check would be sent to plaintiffs. This was denied by Miss Stewart. Miss Stewart and Mr. Moran, purchasing agent of defendant, testified Halpern demanded $500.00 on Monday,

[ 182 Pa. Super. Page 357]

August 25, 1952, before he would process the order. This was denied by Halpern. Moran testified the demand for $500.00 was the only reason for the withdrawal of the order. Halpern further testified that on the morning of August 26, 1952, in telephone conversation with Miss Stewart, he requested defendant to help him out with a little advance money and it was at that time Miss Stewart advised him the order was cancelled. Plaintiffs had been required to make immediate purchase of such items as bottles, labels and caps in order to complete the manufacture of the quantities of aqua ammonia ordered and have the order ready for pick-up by defendant as scheduled. Upon notice of cancellation plaintiffs took steps to return the ammonia and other items to their suppliers for credit and incurred additional expenses. Plaintiffs then brought suit to recover loss of profits on the sale and expenses incurred as a result of the cancellation by defendant. After jury trial a verdict was rendered for the plaintiffs in the amount of $1,056.24.

The principal question raised in this appeal is whether alleged errors and omissions in the charge of the trial court constitute basic and fundamental error and require a reversal of the lower court where only a general exception was taken to the charge. "Under a general exception to the charge of a trial judge we will consider only such alleged errors as are basic and fundamental (Albert v. Schenley Auto Sales, Inc., 375 Pa. 512, 100 A.2d 605) and could not have been corrected at the trial. Steele ...

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