Pipe & Tube Bending Corp. v. Cornine-Hakanson Die-Casting Co., 3747.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: BUFFINGTON, WOOLLEY, and DAVIS, Circuit
• Citation: Pipe & Tube Bending Corp. v. Cornine-Hakanson Die-Casting Co., 27 F.2d 32 (3rd Cir. 1928)
• Decision Date: 20 June 1928
• Docket Number: No. 3747.,3747.
• Parties: PIPE & TUBE BENDING CORPORATION OF AMERICA v. CORNINE-HAKANSON DIE-CASTING CO., Inc.

27 F.2d 32 (1928)

PIPE & TUBE BENDING CORPORATION OF AMERICA v. CORNINE-HAKANSON DIE-CASTING CO., Inc.

No. 3747.

Circuit Court of Appeals, Third Circuit.

June 20, 1928.

Bernard V. McGovern and Riker & Riker, all of Newark, N. J. (Andrew Van Blarcom, of Newark, N. J., of counsel), for plaintiff in error.

August C. Streitwolf, of New Brunswick, N. J. (John G. Poore, of New York City, and Everett H. Brown, Jr., of Philadelphia, Pa., of counsel), for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

Cornine-Hakanson Die-Casting Company brought this suit in assumpsit against the Pipe & Tube Bending Corporation of America and filed a complaint containing two counts — the first, on a quantum meruit for work done and materials furnished in the manufacture of certain dies, castings, molds and vending machines; the second, for moneys expended and profits lost under a written contract for the manufacture of 2,000 additional vending machines. The position of the Die-Casting Company was that the defendant breached the contract through its failure to furnish it boxes or cases in which to assemble the machines; the position of the defendant was that the Die-Casting Company was responsible for the delivery of these boxes and that it breached the contract by failing to obtain the boxes and deliver the assembled machines within the time specified in the contract. The jury rendered a verdict for the plaintiff for $7,000 on the first count and $8,700 on the second, accompanied with a finding of no cause of action on a counterclaim filed by the defendant. To the judgment that followed the defendant sued out this writ of error.

There was at the trial much conflicting testimony arising from opposite understandings not unusual in cases where parties enter into contractual undertakings, implied and expressed, concerning undeveloped and unproved business ventures and where the buying party does not know exactly what he wants and the producing party does not know exactly how to make it and neither party is able or willing to finance the whole venture. And so the issues in this case, touching matters of law lightly, concern essentially disputes of fact. These issues are complicated and sharply controverted and as they are peculiarly of a character for a jury to decide, our concern on this review has been to determine whether they were properly submitted. We find they were, and briefly for these reasons:

The action on the first count is properly in indebitatus assumpsit. Speaking of the parties as they stand on the record, the defendant (Pipe & Tube Bending Corporation) engaged the plaintiff (Cornine-Hakanson Die-Casting Company) to design, develop and manufacture dies from which castings for sandwich-vending machines were to be made. When they were about completed, the defendant decided to change from a sandwich-vending machine to a candy-vending machine. This required the plaintiff to remodel the mechanism, and change some dies, and make others altogether new. Still more changes followed. The defendant was all along advancing weekly payments at a fixed sum on account. Eventually the defendant ordered the plaintiff to stop work. Thereupon it brought this suit, and by the first count claimed $23,009.68 as the amount due on the first order, and admitted payments on account in the sum of $15,853.08. It also admitted receiving additional payments; one group totaled $6,300 and was made by checks marked "to apply on second order" (second count). Though thus marked the plaintiff testified that the defendant authorized the application of these checks to the first order. Here was a clear issue of fact, we think properly submitted; but, if wrong, it made no money difference to either party because this sum was certainly intended to be credited to one order or the other; if to the first as the plaintiff claims it left a balance due of only a few hundred dollars under the first count and correspondingly left a larger balance due on the second order under the second count; if it was intended to be credited to the second, it made a balance of $7,156.60 due on the first order and a corresponding reduction in the second. The jury apparently found the $6,300 should be credited to the second order and evidently made a deduction of that amount in arriving at its verdict of $8,700 on the second count and accordingly allowed the plaintiff practically the whole of its claim on the first count.

We find no errors committed by the court in submitting this or any other issue under the first count.

The written contract declared on in the second count was in the main made by correspondence. It began with a letter written by the defendant to the plaintiff on May 4, 1926, requesting the plaintiff to manufacture 2,000 vending machines and promising to pay $19 for each machine "plus the box which we the defendant will furnish. However, it is our understanding that you the plaintiff will make the contract for the box and hold the people responsible for the ...