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BABCOCK POULTRY FARM v. SHOOK (09/17/64)

decided: September 17, 1964.

BABCOCK POULTRY FARM, INC., APPELLANT,
v.
SHOOK



Appeal from judgment of Court of Common Pleas of Mercer County, Sept. T., 1962, No. 4, in case of Babcock Poultry Farm, Inc. v. John E. Shook, Jr.

COUNSEL

Clayton A. Sweeney, with him Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellant.

Donald R. McKay, with him Cusick, Madden, Joyce, Acker and McKay, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Woodside, J.

Author: Woodside

[ 204 Pa. Super. Page 142]

This is an appeal from a judgment entered in an assumpsit action in the Court of Common Pleas of Mercer County after the court refused the plaintiff's motions for judgment non obstanto veredicto and for a new trial.

The plaintiff, Babcock Poultry Farm, Inc. (Babcock), a wholesaler of baby chicks, sued John E. Shook, Jr., a poultry farmer, in assumpsit to recover $507.99, the balance due on the sale of baby chicks under a written agreement entered into in 1960. Shook, admitting this claim, filed a counterclaim for $4489.40 alleging the breach of an express warranty made in conjunction with an oral agreement entered into by the parties in 1959. The jury allowed Babcock's uncontested claim in full, but returned a verdict

[ 204 Pa. Super. Page 143]

    for Shook on his counterclaim in a net amount of $3,014.81.

Babcock contends that the lower court erred in refusing to enter judgment n.o.v. because the evidence did not establish (1) the existence of an express warranty; (2) that Babcock had received notice of the alleged breach of warranty "within a reasonable time," as required by the Uniform Commercial Code of April 6, 1953, P. L. 3, § 2-607(3), as amended, 12A P.S. § 2-607(3); or (3) that Shook had relied upon the express warranty.

Shook, an experienced poultry farmer, entered into a written agreement in 1958 with Babcock providing for his participation in an experimental testing program designed to evaluate a new strain of chicks developed by it. For his part Shook bought 2200 experimental chicks which he then raised, keeping and submitting to Babcock detailed records on their egg production. Babcock paid Shook for the records.

In 1959 Shook advised the wholesaler that he would no longer participate in the testing program because the egg production of the chicks involved was inferior to that of a strain known as Barbara chicks which he had been using. Whereupon, Babcock invited Shook and his wife to its Ithaca, New York, office for a conference. At this conference the parties entered into an oral agreement providing that Shook would remain in the testing program, that is, raise the experimental chicks and continue to submit records on their egg production, while Babcock agreed to furnish without cost to Shook both experimental chicks and some Barbaras for control purposes, and in addition, to assist Shook with compiling the required records.

At the trial Babcock contended that the offer to supply free Barbara chicks which were allegedly in short supply ...


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