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PENNSYLVANIA CO-OPERATIVE POTATO GROWERS v. NAUNCZEK (03/18/65)

decided: March 18, 1965.

PENNSYLVANIA CO-OPERATIVE POTATO GROWERS, INC.
v.
NAUNCZEK, APPELLANT



Appeal from order of Court of Common Pleas of Columbia County, Oct. T., 1962, No. 282, in case of Pennsylvania Co-Operative Potato Growers, Inc. v. Bennie Naunczek, Jr. et al.

COUNSEL

John Arnold Crisman, for appellant.

Thomas J. Evans, for appellee.

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

Author: Montgomery

[ 205 Pa. Super. Page 180]

This is an action in assumpsit by the Pennsylvania Co-operative Potato Growers, Inc. to recover for advances made by it to cover losses incurred by the defendant Naunczek in the purchase and sale of contracts, or futures for Maine potatoes.

The case was tried before a judge and jury, and a verdict rendered for $4,622, the full amount of the plaintiff's claim. The defendant's motion for a new trial was overruled and judgment was entered on the verdict. Defendant appeals.

Appellee-plaintiff is a nonprofit corporation formed to assist growers market potatoes. Acting through a

[ 205 Pa. Super. Page 181]

    broker the corporation gives members the opportunity to deal in future contracts for the sale of potatoes and to "hedge" on the sale of their own crops. Plaintiff is a member of the New York Mercantile Exchange and all orders for the sale and purchase of potato futures were made under the regulations of that exchange, through a New York broker. Appellant-defendant is a farmer in Berwick, Pennsylvania, and one of the largest potato growers in the state.

The evidence shows defendant signed a contract February 5, 1958, authorizing plaintiff to buy and sell potato futures for him on a marginal basis, and thereafter placed numerous orders for potato futures with plaintiff. In the first of these contracts defendant was hedging on his own crop. Subsequently, over a period from February 25, 1958, until April 14, 1958, defendant bought and sold potato futures in carload lots almost daily as shown by his account sheets with plaintiff. It is clear that in dealing in these futures subsequent to February 25, 1958, defendant was acting as a speculator, and not hedging on his own crop. During this latter period defendant was continually in and out of the market and initially made money on these transactions. In the latter part of April, 1958, however, the market dropped so rapidly that plaintiff was unable to sell nineteen carloads of potato futures on the day defendant ordered them sold. As a result defendant suffered losses and allegedly owed plaintiff a balance of $4,622 on the marginal account, or the amount for which suit was brought.

On appeal, defendant seeks a new trial solely on the ground that the evidence shows the transactions involved were not bona fide future contracts calling for delivery, but were illegal gambling operations based entirely on ...


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