ARCADY FARMS MILLING CO.
EAGLE POULTRY PACKERS, Inc.
Daniel J. Layton, Sr., of Gorgetown, and James R. Morford (of Morford, Bennethum, Marvel & Cooch), of Wilmington, for the plaintiff.
James M. Tunnell, Jr. (of Tunnell & Tunnell), of Georgetown, and Clair J. Killoran (of Killoran & VanBrunt), of Wilmington, for the defendant.
[45 Del. 390] TERRY, Judge.
The plaintiff, an Illinois corporation, is engaged in the business of the manufacture, sale and distribution of mixed feeds for poultry.
The defendant, a Delaware corporation, is engaged in the business of buying poultry which has been raised by various poulty growers on the Delmarva Penninsula, thereafter catching, cooping and transporting the same to its plant at Frankford, Delaware, then putting the poultry through a course of intensive feeding prior to slaughtering, dressing and marketing same.
On April 1, 1948 the defendant contracted to purchase from the plaintiff 300 tons of chicken feed known in the trade as 'Wonder Feed Pellets' or sometimes called 'Station Pellets' at the price of $96.90 per ton, said feed to be delivered within thirty days upon order of the defendant. The type of pellets contracted for are used in the poultry industry to fatten the flocks in batteries prior to slaughtering, and it was for this purpose that the foregoing sale was consummated.
In relation to the 300 tons contracted for, 150 tons were delivered and accepted. The remainder, or 150 tons, was delivered but acceptance was refused. The first delivery was of 30 tons, for which the defendant paid the contract price. In relation to this feed the defendant says it was used as intended, and, as a consequence, the poultry lost weight, resulting in damage to the plaintiff in an amount in excess of the contract price. As to the remaining 120 tons that were accepted, the defendant alleges the same was not fit for the purpose intended and was used as mash to stuff the poultry prior to slaughtering, a use for which feed considerably cheaper than that contracted for is used.
The complaint contains two causes of action: first, that the defendant failed to pay for the 120 tons of the 150 tons delivered [45 Del. 391] under the contract; second, that the defendant refused to accept the remaining 150 tons to be delivered under the contract.
The defendant in its answer seeks damages in way of counterclaim for the 30 tons that it accepted and paid for and subsequently used to the alleged damage to its poultry. As to the remaining 120 tons accepted, allegedly not fit for the purpose intended but used as stuffing mash, the defendant pleads recoupment in diminution of the price.
The plaintiff pursuant to Rule 12(b) of the Rules of this Court moves to dismiss the counterclaim as the same relates to the defendant's answer, for the reason that it fails to state a claim on the part of the defendant against the plaintiff upon which relief can be granted.
The foregoing motion to dismiss is predicated on the provisions of Section 6048 of the Revised Code of Delaware, 1935, Subsection 1 and 2, which provides as follows:
'Remedies for Breach of Warranty:--(1) Where there is a breach of warranty by the seller, the buyer may, at his election:
'(a) Accept or keep the goods and set up against the seller, the breach of warranty by way of recoupment in diminution or extinction of the price;
'(b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty.
'(c) Refuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for ...