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INTERSTATE CREAMERY v. REINERTH (06/13/68)

decided: June 13, 1968.

INTERSTATE CREAMERY, INC.
v.
REINERTH, APPELLANT



Appeal from judgment of County Court of Allegheny County, No. 392 of 1966, in case of Interstate Creamery, Inc. v. Ronald H. Reinerth.

COUNSEL

Giles J. Gaca, with him Pringle, Bredin, Thomson, Rhodes & Grigsby, for appellant.

Richard L. Rosenzweig, with him Samuel M. Rosenzweig, and Rosenzweig and Rosenzweig, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 212 Pa. Super. Page 336]

This is an appeal from a judgment entered in favor of plaintiff-appellee for $4,509.60 in an action of assumpsit brought to recover the price of dairy products furnished the defendant-appellant on an open running account by the Harmony Dairy Company, which assigned the account to plaintiff, Interstate Creamery, Inc. The suit was originally brought to collect a balance

[ 212 Pa. Super. Page 337]

    of $3,540.80 with interest. However, by amendment to the complaint the amount was increased to $4,509.60 to include $997.65 erroneously credited to the account. The final amendment restated the total amount claimed to be $4,538.45.

The defendant in his answer denied that any money was owing on the account, and under "new matter" alleged an agreement for a loan from plaintiff for the purchase of a delivery truck by the defendant to be used to sell plaintiff's products, said loan to be paid off by the defendant paying five cents a gallon extra on ice cream materials the defendant would subsequently purchase from the plaintiff. Defendant also alleged that such agreement was unenforceable since it was in violation of the Pennsylvania Milk Control Law of April 28, 1937, P. L. 417, art. VIII, § 807, as amended, 31 P.S. § 700j-807, and the regulations of the Pennsylvania Milk Control Commission; and further, that no money was presently due on said indebtedness since five cents extra had been paid on each gallon of ice cream material previously received from plaintiff.

The matter came to trial before the Honorable Charles D. McCarthy, Judge, and a jury, which returned a verdict "for the plaintiff that the defendant pay the sum of $3,511.95 within a five year period at no interest. Also the defendant is not liable for the sum of $997.60 because it was an error of the companies involved." After the jury had been discharged and without notice to defendant's counsel Judge McCarthy entered the following order on the back of the jury's verdict: "May 4, 1967: And now to-wit; the verdict of the Jury is stricken and judgment N.O.V. is entered in favor of the plaintiff and against the defendant in the sum of $4,509.60. [s] McCarthy, J."

Motions on behalf of defendant for judgment n.o.v. in its favor, for judgment on the whole record, for a

[ 212 Pa. Super. Page 338]

    new trial and to strike the judgment n.o.v. in favor of plaintiff, being overruled on September 13, 1967, after argument before the court en banc, ...


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