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URVANT v. IMCO POULTRY

January 2, 1970

Harry URVANT, Plaintiff,
v.
IMCO POULTRY, INC., as successor in interest to Neuhauser Hatcheries, Inc. as successors in interest to Koppenhofer Brothers Company, a corporation, as successors in interest to Koppenhofer Brothers, a partnership, Defendant


Dooling, District Judge.


The opinion of the court was delivered by: DOOLING

FINDINGS OF FACT AND ORDER FOR JUDGMENT

DOOLING, District Judge.

 The following are the findings of fact herein:

 1. Koppenhofer Brothers was incorporated on July 28, 1955. Prior to that time Koppenhofer Brothers conducted business as a partnership.

 2. Neuhauser Hatcheries, Inc. acquired the stock of Koppenhofer Brothers, Inc., on February 1, 1965.

 3. Koppenhofer Brothers, Inc., was merged into Neuhauser Hatcheries, Inc., on February 28, 1967.

 4. IMCO Poultry, Inc., acquired substantially all of the assets and assumed certain specific liabilities of Neuhauser Hatcheries, Inc., on March 1, 1967.

 5. The business of each of the foregoing companies was to purchase eggs from the producers thereof, and then to process, package and resell same to retail and wholesale outlets.

 6. Plaintiff introduced the H.C. Bohack Company, Inc. (hereinafter "Bohack") to Koppenhofer Brothers, a partnership (hereinafter "Koppenhofer"), as a buyer for eggs processed by Koppenhofer.

 7. Plaintiff introduced Adria Farms, Inc. (hereinafter "Adria") to Koppenhofer as a buyer for eggs processed by Koppenhofer.

 8. Koppenhofer first shipped eggs to Bohack in the summer of 1960.

 9. Koppenhofer first shipped eggs to Adria on or about August 1, 1960.

 10. Koppenhofer and its successors have continuously shipped eggs to Bohack and Adria from on or about August 1, 1960, to the date of the complaint herein.

 11. Up to February 27, 1967, plaintiff received a commission of 1/2 cent upon each dozen of eggs which Koppenhofer, Koppenhofer Brothers, Inc. and Neuhauser Hatcheries, Inc., shipped to Bohack and Adria.

 12. The total amount of commissions received by plaintiff is $110,505.62.

 13. The last shipment of eggs upon which a commission was paid to plaintiff was shipped in the last week of February, 1967.

 14. From the date of said last shipment to September 30, 1967, IMCO Poultry, Inc., had shipped to Bohack and to Adria a total of 2,090,299 dozen eggs.

 15. In the summer of 1960 after a meeting at Koppenhofer's place of business in Ohio at which plaintiff sought out Koppenhofer and a later meeting in New York at the office of H.C. Bohack & Co., Inc., Koppenhofer agreed to sell eggs to Bohack and to pay a commission to plaintiff of one-half a cent on each dozen eggs sold. It appears that the understanding between plaintiff and Koppenhofer, although it arose in the Bohack context and with Bohack as a first and probably principal customer, was a general arrangement extending to any business that plaintiff brought to Koppenhofer and that Koppenhofer accepted.

 16. The parties agree that plaintiff had with him in the first interview at Koppenhofer's office in Ohio an unsigned draft form of agreement (Exhibit 2) which he wanted Koppenhofer to sign; plaintiff made the sense of that contract clear to Koppenhofer and Koppenhofer assented to the idea of contracting on its general terms if Koppenhofer decided to try to enter the New York market and to take plaintiff on as its commission agent.

 17. The draft agreement discussed at the first meeting read

 
"It is our further understanding that on all sales made to customers not previously sold by you, that my commission will be due and payable for so long as you will ...

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