39 A.2d 447 | N.J. | 1944
Reck Dairy Company was engaged in the milk business and required by R.S. 4:12-1, et seq., to have a license therefor. A prerequisite to the issuance of a license was that the licensee post a bond, running to the Secretary of Agriculture of the State of New Jersey, conditioned for the payment by the licensee of moneys due to those who supplied it with milk during the period of the license. R.S. 4:12-4. In this instance, Reck Dairy Company as principal, and Commercial Casualty Insurance Company as surety executed and filed a bond in the amount of $5,000. When Reck Dairy Company filed the application for a license, it listed the names of the farmers or producers from whom it purchased milk. Some six or seven months after commencing to operate, Reck Dairy Company ceased to get milk directly *270
from the producers whom it had listed in the application for license and thereafter got milk, produced by the same farmers, through the medium of Hope Farmers Co-operative Association, Inc. (hereinafter referred to as the Co-operative). Reck Dairy failed to meet the payments due for milk supplied to it and the Co-operative filed a claim with the Secretary of Agriculture, who, in turn, made a demand upon Commercial Casualty Insurance Company on the bond aforementioned. The Casualty Company refused to pay, whereupon the present suit was commenced by the Secretary of Agriculture. The Casualty Company filed an answer setting up two separate defenses. One defense pleaded that the Co-operative was not a "producer" entitled to the protection of the bond; the other defense pleaded the existence of a rebate or kick-back agreement between Reck Dairy and the Co-operative in contravention of the prohibition of Pamph. L. 1939, ch.
The case came on for trial and the defendant Casualty Company moved for a nonsuit and the direction of a verdict in its favor. These motions were denied, whereupon the plaintiff, Secretary of Agriculture, moved for a directed verdict in its favor which was granted. From the judgment of $5,773.44 entered thereon, this appeal is taken.
Three grounds of appeal are urged, error in denying the motion for a nonsuit, error in denying the motion for a directed verdict for defendant and error in directing a verdict for the plaintiff. The argument of appellant is twofold, first, that the Co-operative is not a "producer" entitled to the protection of the statute and the bond therein required; second, that the illegality of the arrangement between Reck Dairy and the Co-operative precludes a recovery under the bond.
Dealing with the question of whether or not the Co-operative was a producer within the purview of the Milk Control Act, we find that the statute applicable to the transactions out of which this litigation arose is Pamph. L. 1939, ch.
As to the contention that recovery is barred because of the admitted existence of an illegal rebate arrangement between Reck Dairy and the Co-operative, we determine otherwise. The pertinent statutory provision during the period with which we are concerned is Pamph. L. 1939, ch.
For the reasons stated, the judgment under appeal is affirmed, with costs.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 16.
*273For reversal — None.