Appeal, No. 198, Oct. T., 1956, from judgment of Municipal Court of Philadelphia, March T., 1954, No. 830, in case of Paramount Paper Products Company, Inc. v. Arthur A. Lynch, trading as Devonshire Cream Mint Co. Judgment affirmed.
William L. West, with him William L. Matz, and Zoob & Matz, for appellant.
Otto W. Woltersdorf, for appellee.
Before Rhodes, P.j., Wright, Woodside, Ervin, and Carr, JJ. (hirt and Gunther, JJ., absent).
[ 182 Pa. Super. Page 506]
This is an appeal from the refusal of the court below to enter judgment in favor of the plaintiff for $1234.80, and to grant it a new trial, after a verdict for the plaintiff in the sum of $306.24 with interest.
The plaintiff brought this action in assumpsit on a book account to recover the purchase price of 100,000 cellophane bags ordered by the defendant for use in merchandising mint candies sold by him to retail stores. He had been in business for a number of years, during which time he had used millions of a certain type of bags printed in blue ink. At the time the order was given to the plaintiff it was accompanied by a sample bag which was to be matched.
The bags which were delivered to the defendant in cartons, were first used in his business a few days later while he was in Columbus, Ohio. There was a dispute as to the number used; the plaintiff claiming 35,000, and the defendant admitting 18,000 to 20,000. When the plaintiff's wife called him on the telephone, he directed her to stop using the bags immediately. Upon his return to his place of business a few days later, he notified the plaintiff that the bags did not comply with the sample, were unsatisfactory, and that he desired to return the unused ones. Later the plaintiff sent to the defendant's place of business two of its employes who went over the cartons, marking them with such designations as, "O.K., light, high marks." "O.K. darkest." "N.G." "Darker, N.G." "O.K. light." The defendant testified that he "Couldn't use five shades of blue," and the plaintiff's president said "He couldn't duplicate the blue you want."
The case was tried in the Municipal Court of Philadelphia and the jury returned a verdict as follows:
[ 182 Pa. Super. Page 507]
"Jury finds for the defendant, Arthur A. Lynch, individually and trading as Devonshire Cream Mint Company, and against the plaintiff, Paramount Paper Products Co., Inc., and stipulates that the defendant pay for 25,000 bags, with interest on the same, and also return the unused portion of shipment of bags."
In a discussion with the trial judge and counsel, the foreman of the jury further stated "We thought that the defendant, Mr. Lynch, should pay for the bags that he had used, and that he didn't get what he wanted in the way of bags, the sample that ...