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Clinton Milk Co. v. May''s Dairy Co.

Decided: May 27, 1952.

CLINTON MILK CO., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MAY'S DAIRY COMPANY, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Eastwood, Bigelow and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

[19 NJSuper Page 560] Plaintiff, Clinton Milk Company, a New Jersey corporation, instituted an action in the Hudson County Court, Law Division, against the defendant, May's Dairy Company, Inc., of Bayonne, New Jersey, for the recovery of $4,902.80, together with interest and costs for goods sold and delivered to the defendant between January 20, 1950, and January 27, 1950. In its answer, the defendant stated that it had no knowledge or information sufficient to form a belief as to whether the plaintiff had in fact sold and delivered the merchandise in question and, therefore, denied liability.

The court denied the plaintiff's motion, at the close of the entire case, for a directed verdict in the amount of $4,902.80, plus interest. Thereupon, the court granted the defendant's motion for judgment in its favor without prejudice on the ground that the proofs did not establish that the merchandise was sold and delivered to it. The plaintiff appeals from the ensuing judgment and the defendant cross-appeals from so much of the judgment which adjudges the same to be without prejudice.

At the time of the alleged sales in question, the defendant company was virtually owned by two women, Mrs. Marguerite May and Mrs. Augusta Seeman, who knew little of the actual operation of the business and did not participate therein. It was conceded that the management and supervision thereof was handled by one Al Seeman. Mr. Seeman died between the date of the sales and the trial of the issue.

The two companies involved in this matter transacted business for more than 12 years. It had been the practice for defendant's trucks to pick up plaintiff's milk products at plaintiff's plant and transport them to defendant's place of business at Bayonne, for sale to its customers.

Thirteen delivery slips for the period in question, to wit: January 20, 1950, to January 27, 1950, signed by defendant's employees as evidence of receipt of the goods by defendant company, were introduced into evidence by the plaintiff. Seven of the slips bear the name of "Seeman" thereon; two "Seeman -- May's Dairy" and four "May's Dairy." The total charges for the products delivered amounted to the sum of $9,474.99, of which a portion was re-sold by May's to the Army and Navy, but was later rejected and returned to plaintiff who allowed defendant a credit in the amount of $3,392.92, plus storage and strapping charges, a total of $4,572.19. Thus, the net amount claimed by plaintiff was $4,902.80, plus interest.

Joseph Asarnow, office manager and secretary of the plaintiff, testified that the two companies had been doing business together for "twelve, fifteen years"; that he had

charge of the plaintiff's books; that the milk in question was sold and delivered to the defendant; that "They came with their truck, with their own truck, signed for the delivery, signed the delivery book, and went and picked up the goods and went away"; that an invoice was mailed to defendant showing the charges to be $9,474.99, for the period in question, and that later credit was allowed for products rejected by the Army and Navy, leaving a balance due of $4,902.80.

Raymond Seeman, son of Al Seeman, manager of defendant's business, testified for plaintiff that he had been employed by the defendant company prior to and during the period of the sales in question; that he made the pick-ups at plaintiff's plant for the defendant and identified his signature on several of the delivery slips and identified the signature of his father, Al Seeman. He testified that with the exception of approximately 32,000 quarts of milk allowed as a credit, the products delivered were sold to defendant's customers.

He further testified that his father, Al Seeman, was the manager of defendant's business; that he had no other business; and that record entries were made in defendant's books showing the purchases in question. He also testified that he was present at a conference between the parties in December, 1950, when the balance due by defendant was agreed upon.

Philip Marx, president of the plaintiff company, testified that he was present at the conference between the parties and the amount due the plaintiff was agreed upon to be $4,902.80.

Mrs. Augusta Seeman, witness for the defendant, admitted that her deceased husband, Al Seeman, was the ...


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