221 F.2d 607 (2nd Cir. 1955), 197, Pierce Consulting Engineering Co. v. City of Burlington, Vt.

Docket Nº:197, 23313.
Citation:221 F.2d 607
Party Name:PIERCE CONSULTING ENGINEERING CO. and Henry Friedman, Assignee, Plaintiff, v. CITY OF BURLINGTON, VT., Defendant and Third-Party Plaintiff-Appellant, CENTURY INDEMNITY CO., Third-Party Defendant-Appellee.
Case Date:April 04, 1955
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 607

221 F.2d 607 (2nd Cir. 1955)

PIERCE CONSULTING ENGINEERING CO. and Henry Friedman, Assignee, Plaintiff,

v.

CITY OF BURLINGTON, VT., Defendant and Third-Party Plaintiff-Appellant, CENTURY INDEMNITY CO., Third-Party Defendant-Appellee.

Nos. 197, 23313.

United States Court of Appeals, Second Circuit.

April 4, 1955

Argued Feb. 18, 1955.

Rehearing Denied April 29, 1955.

Page 608

Bernard J. Leddy, Burlington, Vt., for defendant and third-party plaintiff.

Edmunds, Austin & Wick, Burlington, Vt. (Hilton A. Wick, Burlington, Vt., of counsel), for third-party defendant.

Fayette & Deschenes, Burlington, Vt., F. Elliot Barber, Jr., Brattleboro, Vt., Hale & Dorr, Boston, Mass., for Pierce Consulting Engineering Co. and Henry Friedman, Assignee.

Before FRANK and MEDINA, Circuit Judges, and BRENNAN, District Judge.

Page 609

BRENNAN, District Judge.

Appellant challenges on this appeal the sufficiency of the evidence to warrant the submission of the question of its fraud to the jury.

The details of a rather complicated litigation may be eliminated in part since the trial judge, with the approval of the litigants, directed that a single phase of the total litigation be determined at the trial involved in this appeal. Thereupon the issue was limited to a determination of the existence and validity of a contract, wherein the Century Indemnity Co. became a surety to the City of Burlington, Vermont, as obligee for the performance of a contract made by The Pierce Consulting Engineering Co. with the City of Burlington.

In Sept. 1951 the Pierce Co. was employed by contract to prepare and furnish engineering services and plans to the City of Burlington in connection with the erection of a new electrical generating station. This contract was modified by a writing of April 1952 which in effect accelerated payments which would become due to the Pierce Co. On March 18, 1952 the Pierce Co. was also employed by written contract to furnish plans and specifications to the City for the construction of electrical distribution facilities. None of the three contracts by their terms provided for a definite completion date or schedule of performance. Performance by Pierce was not secured by bond or otherwise.

About May 1952 the City took its first action directed to requiring that the Pierce Co. furnish a bond for the performance of the above-mentioned contracts. The details of the further negotiations, conversations and writings relative to the procurement of such bond are unnecessary. It is sufficient to say that the City contends that a contract came into existence by reason of an offering letter of Aug. 18, 1952 from an agent of Century to the City and a letter of acceptance by the Board of Light Commissioners, dated Aug. 29, 1952.

The existence of...

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