Appeal, No. 141, Jan. T., 1958, from judgment of Court of Common Pleas of Northampton County, Sept. T., 1955, No. 107, in case of Pilgrim Food Products Company, Inc. v. Filler Products, Inc. Judgment affirmed.
Jacob A. Raub, for appellant.
J. Douglas Fackenthal, with him S. Maxwell Flitter, and Fackenthal, Teel, McGiffert & Danser, for appellee.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN
Plaintiff, Pilgrim Food Products Company, a Pennsylvania corporation, instituted an action in trespass by writ of foreign attachment and complaint to recover damages for fraud allegedly practiced upon it by defendant, Filler Products, Inc., a nonresident corporation.
Plaintiff alleged that on January 25, 1950, defendant fraudulently induced it to enter into a contract for the lease of a machine under which agreement the defendant obtained $5,000, and a judgment for a like sum. This judgment was attached by the writ of foreign attachment. Filler's alleged fraud consisted of certain statements made by its president and its treasurer to plaintiff that Filler had authority to deliver and license the operation of the machine, when, in fact, as these officers well knew, it had no such authority. Filler filed an answer and thereafter moved for judgment on the pleadings asserting, inter alia, that the plaintiff's
claim, having been litigated in a prior action between the parties, was barred by the final judgment therein. The lower court granted defendant's motion holding that plaintiff's action was barred under the doctrines of res judicata and collateral estoppel. This appeal followed.
The litigation out of which Filler claims the estoppel arose is based on a contract entered into between Pilgrim and Filler which provided, insofar as here relevant, for a final payment on February 15, 1950 of $5,000 by Pilgrim to Filler for the delivery and use of a Korn Kurl machine, a patented device for the manufacture of corn products for human consumption. Pilgrim failed, however, to make the payment. Filler thereupon brought suit to recover the due and unpaid sum. Pilgrim's defense was based in part upon the contention that it was advised by a representative of the Korn Kurl patent owner that Filler had no legal right to forward a machine to Pilgrim or to license the operation thereof, and that Filler had admitted that it had no such authority. The trial court directed a verdict for Filler.*fn1
Subsequently, Pilgrim learned that on March 8, 1955, a judgment had been rendered by the Supreme Court of Wisconsin in the case of Flakall Corporation v. Krause, 269 Wis. 310, 70 N.W.2nd 8 (1955) which terminated litigation begun in that state in 1951. This judgment Pilgrim now claims is, in effect, a determination that Filler was without right to use or to license the use of the Korn Kurl machines, and therefore had no ...