DELMARVA POULTRY CORPORATION, a Delaware corporation, Plaintiff Below, Appellant,
SHOWELL POULTRY CORPORATION, a Delaware corporation, Defendant Below, Appellee.
[54 Del. 473] An appeal from the Superior Court in and for New Castle county.
S. Samuel Arsht and Harvey S. Kronfeld, of Morris, Nichols, Arsht & Tunnell, Wilmington, for appellant.
Robert W. Tunnell, of Tunnell & Raysor, Georgetown, for appellee.
SOUTHERLAND, C. J., WOLCOTT, J., and SHORT, Vice Chancellor, sitting.
This is an action brought by Delmarva Poultry Corporation (hereafter Delmarva) against Showell Poultry Corporation (hereafter Showell) to recover rent and expenses of operation for the use by Showell for the transporting of live chickens of certain tractor-trailers and batteries owned by Delmarva. After trial without a jury the Superior Court entered judgment for Delmarva in the amount of $4,775.82 representing reasonable rental for the equipment for the period June 23 to July 10, 1955 in the amount of $5,154.40, plus cost of operations in the amount of $2,121.42 incurred by Delmarva prior to June 23, less $2,500.00
paid by Showell on June 30, 1955. Delmarva was denied any recovery for the period prior to June 23. Delmarva appeals.
In October, 1953 Delmarva abandoned the business of hauling, processing and selling poultry and thereafter confined its business to leasing its processing plants and its tractor-trailers and batteries to other poultry processors. Showell, since 1953, has been engaged in the business of hauling, processing and selling poultry.
By the spring of 1955 the poultry industry generally, in order to haul poultry more efficiently, had changed from haulage[54 Del. 474] in coops to haulage in batteries. The precise difference between the two methods is immaterial to a decision in this lawsuit. For our purposes it is sufficient to state that about this time Showell decided to switch from a coop to a battery operation.
In March or April of 1955 a public sale of the assets of a bankrupt poultry processing plant was held in Frankford, Delaware, at which Delmarva purchased the tractor-trailers, the subsequent use of which by Showell brought about this lawsuit.
While the facts as to what transpired in April, 1955 between one Landes, representing Delmarva, and one Guerrieri, representing Showell, are in hopeless dispute, it is the fact that pursuant to some agreement made by them Showell used Delmarva's equipment for the period April 17 to July 10, 1955.
Delmarva's version of the agreement is that Showell for the use of the equipment was to pay Delmarva a rental of 70¢ per hundred weight of live poultry hauled by Showell in the equipment, plus the cost of gasoline, oil, repairs, etc., with an option, never exercised by Showell, to pay instead a flat rental of $95.00 per tractor-trailer per week. At the time of the agreement Delmarva says that it was understood that Showell would need this equipment only until such time as it received delivery of new tractor-trailers which it had ordered. About one week later, according to Delmarva's version, Delmarva agreed to furnish Showell batteries at a rental of $3.00 per battery per week. Pursuant to this, Delmarva furnished Showell 182 batteries throughout the period in question.
On the other hand, Showell's version of the agreement is that the equipment was loaned by Delmarva to Showell with the understanding that Showell was to pay the cost of gasoline, oil, repairs, etc. Showell contends that this arrangement[54 Del. 475] conferred a benefit on Delmarva because the tractor-trailers, which apparently had not been operated for some time prior to their purchase by Delmarva, were repaired and put in operating condition at Showell's expense.
Following the commencement of the use by Showell of Delmarva's equipment, Delmarva rendered bills to Showell for truck expenses which did not include any charge for truck rental but included charges for gasoline, oil, parts, supplies and labor. Such bills were rendered on June 1 for $2,242.09; on June 9 for $972.67, and on June 14 for $917.59. On June 22 Delmarva rendered a bill to Showell which, for the first time, indicated a charge for truck rental with no amount specified and also included charges for supplies, etc., in the amount of $1,028.53. This bill was followed on June 23 with a bill for truck rental to that date in the total amount of $7,200.00. On June 28 a bill for supplies in the amount of $1,092.89 with truck rental included but no amount stated was rendered, and on July 6 a bill in the amount of $666.01 for supplies alone was rendered.
The trial judge held that it seemed unlikely that Delmarva would have loaned its equipment without any charge except for fuel and repairs, but that it seemed equally unlikely that Showell would have agreed to pay 70¢ per hundred weight and at the same time pay for fuel, repairs and the labor costs for manning the equipment, since that rate ordinarily obligated the owner of the equipment to pay these charges.
It was therefore held that Delmarva had failed to sustain the burden of proof cast upon it, and that, hence, no recovery would be ...