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FLOOD v. M.P. CLARK

December 7, 1970

David A. FLOOD, Trustee of Estate of Taylor's Potato Chip Company, Inc. (Bankrupt)
v.
M.P. CLARK, INC. (2 cases)


Wood, District Judge.


The opinion of the court was delivered by: WOOD

WOOD, District Judge.

 FINDINGS OF FACT

 1. Plaintiff, David A. Flood, is the Trustee in Bankruptcy of the Estate of Taylor's Potato Chip Company, Inc., whose address is Bellefonte, Pennsylvania.

 2. Defendant, M.P. Clark, Inc., is a corporation located at 226 N. Decatur Street, Strasburg, Pennsylvania. At the time of the transactions involved, defendant was licensed under the Perishable Agricultural Commodities Act, 1930, § 1 et seq., 7 U.S.C. § 499a et seq.

 3. On or about August 23, 1963, a written contract was entered into between Richard C. Taylor, doing business as Taylor's Potato Chips, and M.P. Clark, Inc., which provided that Clark agreed to sell and Taylor's agreed to buy approximately one trailer load of potatoes every ten days for a period of one year beginning May 1, 1964. The contract further provided that all potatoes would be of chipping quality and delivered at Bellefonte, Pennsylvania, at a price of $3.00 per 100 lbs. The contract also provided that during the months of May, June, July and August, 1964, Taylor's was to be billed at the rate of $4.00 per 100 lbs., and when New York potatoes were delivered thereafter, no invoices were to be submitted until the $1.00 difference in price was made up. Also, all New York potatoes that were delivered out of the ground at time of harvest would cost $2.60 per 100 lbs., but if such potatoes were stored by the seller and delivered later, they would cost $3.00 per 100 lbs. It was agreed that payment would be made by the buyer upon presentation of invoices. It was contemplated by the parties that the potatoes would be shipped in interstate commerce.

 4. Sometime between August 23, 1963, and March 16, 1964, Taylor's Potato Chips incorporated and became Taylor's Potato Chip Company, Inc. On or about March 16, 1964, Richard Taylor transferred all of his interest in the assets of Taylor's Potato Chips to the corporation, including the written contract covering the transactions involved herein previously executed by Richard Taylor and M.P. Clark, Inc.

 5. Richard Taylor remained as manager of the corporation.

 6. Richard Taylor notified by mail all persons with whom he dealt that he had transferred his interest in Taylor's Potato Chips. M.P. Clark did not become aware of said transfer until on or about September 15, 1964, in a conversation with Taylor.

 7. A truckload of potatoes consists of approximately 350 100 lb. bags. A delivery of one truckload of potatoes every ten days for one year would constitute a delivery of 12,600 100 lb. bags of potatoes.

 8. The first delivery under the contract was made on May 6, 1964 of 175 100 lb. bags of potatoes for which Taylor's Potato Chip Company, Inc., paid $700.00 on or about June 9, 1964. The second delivery under the contract was made on May 12, 1964 of 380 100 lb. bags of potatoes for which Taylor's paid $1,520.00 on or about June 26, 1964.

 9. From May 26, 1964, until September 14, 1964, M.P. Clark delivered to Taylor's 2,988 100 lb. bags of potatoes, the total cost of which was $11,802.00. Taylor's paid Clark $10,000.00 on October 14, 1964, and the balance was paid on December 3, 1964.

 10. On or about September 15, 1964, M.P. Clark notified Richard Taylor that no further deliveries would be forthcoming until payment for past deliveries was made.

 11. On or about October 14, 1964, M.P. Clark agreed to make further deliveries to Taylor's on a c.o.d. basis. A delivery was made on October 20, 1964, of 390 100 lb. bags of potatoes for which Taylor's paid $1,170.00. No further deliveries were ...


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