Franklin Research & Develop. Corp. v. Swift Elec. Sup. Co.

• Citation: 236 F. Supp. 992
• Parties: FRANKLIN RESEARCH AND DEVELOPMENT CORPORATION, Plaintiff, v. SWIFT ELECTRICAL SUPPLY CO., Inc., Defendant.
• Decision Date: 10 January 1964
• Court: U.S. District Court — Southern District of New York

236 F. Supp. 992

FRANKLIN RESEARCH AND DEVELOPMENT CORPORATION, Plaintiff, v. SWIFT ELECTRICAL SUPPLY CO., Inc., Defendant.

United States District Court S. D. New York.

January 10, 1964.

Clark, Carr & Ellis, New York City, for plaintiff; John T. Moran, Jr., David J. Sweet, New York City, of counsel.

Gainsburg, Gottlieb, Levitan & Cole, New York City, for defendant; Harry Giesow, Irwin Echtman, New York City, of counsel.

LEVET, District Judge.

This is an action for breach of contract for the manufacture and delivery by plaintiff of certain electric lighting fixtures to defendant. Jurisdiction is based upon diversity of citizenship. The case was tried to the court.

Proposed Findings of Fact, Conclusions of Law and the briefs of the parties having been received, the court, after considering the pleadings, evidence, exhibits, briefs and stipulations of the parties, now makes its Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Plaintiff is a Delaware corporation with its principal place of business in Boston, Massachusetts. At the time of the making of the contract a division of plaintiff, Wheeler-Fullerton Lighting Division, was located in Norwalk, Connecticut, where it manufactured lighting fixtures.

2. Plaintiff is not authorized to do business in the State of New York and has not sought such authorization although it has, over the years, employed salesmen in New York who solicited orders and maintained a listing in the New York City telephone directory. (860-62)¹

3. Defendant is a corporation organized and existing under the laws of New Jersey with its principal place of business in Union City, New Jersey.

4. Defendant is engaged in the electrical wholesaling business, selling manufactured products to electrical contractors, stores and others in New York and New Jersey. Defendant was and is qualified to do business, as a foreign corporation, in the State of New York.

5. In 1959, Roy Swensen, an electrical contractor, was doing business under the firm name and style of "Mehl Electric Company" at Pearl River, New York. As such, Swensen was performing electrical work in the construction of commercial and industrial building, including the furnishing and installation of wiring, fixtures, panels, etc. (627-28) Swensen had purchased electrical equipment utilized by him in such construction from the defendant for many years before and still continues to purchase such equipment from defendant. (664-67) On or about April 16, 1959, Swensen executed and delivered a purchase order to defendant (Ex. G.), whereby Swensen ordered:

"992 4 ft. × 4 ft. recessed fluorescent fixtures, 6-light 40W RS ETL 277 volt ballast, poly vinyl hinged louvre. Mfgr. to supply necessary mounting yokes satisfactory to the contractor and job conditions. $45.00 each.

"This order is subject to fixture approval.

"6 cuts and a sample are required."

The order provided that the fixtures were to be shipped % Shoppers Paradise, Route #84, Wallkill, New York. The delivery date was "To be agreed upon Approximately ½ on June 15th." (Ex. G)

I. NEGOTIATION AND FORMATION OF THE CONTRACT

6. In April 1959, Lucy M. Jehring, defendant's office manager, telephoned Louis A. Robinson, plaintiff's salesman, inquiring about the purchase of approximately 1,000 lighting fixtures. (39-41) Robinson referred the defendant to Lawson Fullerton, Vice-President of plaintiff's Norwalk, Connecticut plant. The defendant telephoned Fullerton and obtained a price of $42.50 per fixture for catalogue item RSD640.

7. At the end of April or the early part of May 1959, defendant telephoned Robinson and requested him to supply a sample fixture. (43-45) On or about May 12, 1959, defendant received at Union City, New Jersey, a certain electrical lighting fixture, described as "RSD 640 LP 4 × 4 white with plastic louvers, Fixture depth 3¾"." (Ex. 1; 6, 228)

8. On May 22, 1959 at defendant's warehouse in Nanuet, New York, the sample fixture was examined by Robinson, Anthony Sodora, defendant's President, Joseph Hennessy, the defendant's branch manager, and by Roy Swensen. This fixture was built to accommodate six 40-watt fluorescent lamps which are operated by three 40-watt ballasts or transformers. The fixture had a plastic louver which is a shielding element which eliminates part of the glare from the lamps. There were two louvers 2' wide by 4' long which were held in place by an inverted T rail located in the center of the fixture. (51-56, 503-504, 635-37, 639)

9. At the May 22, 1959 meeting, Robinson agreed to have plastic or nylon strips fastened to the edge of the fixture and clamped around the louvers so that the louvers could swing free when the fixture was relamped. It was also agreed that the ballast covers were to be shipped separately in order to save labor upon installation. (54-56, 874-75) Robinson was informed that it was not known in what type of ceiling the fixtures were to be installed.

10. After examining the fixture, Robinson, Swensen, Hennessy and Sodora went to Hennessy's office where Robinson prepared a purchase order. (57) This purchase order (No. 28380) was signed on May 22, 1959 at Nanuet, New York by Sodora, the defendant's President. Plaintiff's Exhibit 2, which is a copy of the purchase order, was then given to Robinson. The text of the order (Ex. 2) reads as follows:

"992 — 4 × 4' RSD 640 Plastic Louvers 6/40 WRS ETL 277 Volt Universal Ballasts. To be supplied with necessary haging sic satisfactory to contractor. Louvers supplied with vinyl strips installed 42.50 ea

"2% 10 Net 30.

"Subject to Final Approval by Owner.

"As per sample our #F 3967."

11. The phrase "Subject to Final Approval by Owner" was put on the purchase order at Sodora's request. However, both Swensen and Sodora told Robinson that Swensen had "more or less the final decision on the type of fixture that was going on the job." (61-62, 157) There was no conversation (on May 22, 1959) about the owner. (62, 158) The description "As per sample our #F 3967" was written on the purchase order by Robinson. The reference number (F 3967) is the number appearing in Plaintiff's Exhibit 1, the invoice for the fixture that had been examined in the warehouse. This was done after Sodora signed the purchase order but Robinson made this notation in the presence of Sodora, who saw Robinson write it in but who made no comment (71-72) although he was sitting on Robinson's right at the desk. (153)²

12. The depth of the fixture that was examined on May 22, 1959 prior to the preparation of the purchase order was 3¾". (62-63) At this time (May, 1959), the Fullerton Manufacturing Company had a catalogue (Ex. 25) in use which depicted a fixture known as The Wellesley RSD 640 whose dimensions were 48" × 48" × 7". The catalogue did not show a fixture having the same dimensions as the one examined on May 22, 1959. (64-67) The defendant's President, Sodora, conceded that he had ordered a fixture with a 3¾" depth and not a fixture with a 7" depth, depicted in plaintiff's catalogue (Ex. 25). (546-47)

13. While the purchase order was being prepared, Swensen told Robinson that delivery (of the fixtures) would be around October, 1959. (73) After Robinson left defendant's office in Nanuet, he mailed the purchase order (Ex. 2) from his office in Newark, New Jersey to plaintiff's plant in Norwalk, Connecticut. (74)

14. On or about May 29, 1959 the plaintiff mailed to the defendant plaintiff's acknowledgment referring to defendant's purchase order No. 28380. Plaintiff's Exhibit 3 is plaintiff's copy of the acknowledgment. The original of this acknowledgment was received by the defendant at its office in Union City, New Jersey. (8)

15. The acknowledgment (Ex. 3) reads as follows:

"RSD 640 LF 4 × 4 white with plastic louver shielding with vinyl hinges. 277 volt ballasts. Fixture depth 3¾" same as sample supplied on our F-3967.

"Note: Wireways covers to be packed separately and not installed in fixtures.

"Ceiling construction to be advised.

"Note: Upon release of this order by you at least 60 to 90 days will be required for fabrication and shipment."

16. Defendant's Exhibit E and plaintiff's Exhibit 2 contained the following terms not appearing on plaintiff's acknowledgment (Ex. 3):

"To be supplied with necessary haging sic satisfactory to contractor

"Subject to final approval by owners

"2% 10 Net 30"

The reverse side of defendant's order (Ex. 2) provided a condition, among others, that the defendant had the right to cancel all or part of the order before shipment.

17. On June 4, 1959, Lucy M. Jehring, defendant's office manager, wrote to plaintiff. The letter (Ex. 3A) states:

"Acknowledgment does not cover all details as noted on our Order — Note change in Cash Discount. Please have corrected copy forwarded to us immediately."

18. Shortly after June 9, 1959, at Norwalk, Connecticut, the plaintiff mailed to the defendant in Union City, New Jersey a copy of plaintiff's acknowledgment (Ex. 4) of defendant's purchase order No. 28380. (Ex. 2) This acknowledgment was changed to show a 2% discount instead of a 1% discount as previously shown in the first acknowledgment. (Ex. 3) The change was made at the defendant's request. (231-32)

19. Plaintiff's Exhibit 4 (as did the first acknowledgment, Ex. 3) contained the notation that "upon release of this order by you, at least 60 to 90 days will be required for fabrication and shipment." This notation was placed on the acknowledgment because the defendant had not given an exact shipping schedule and was thus a notice to defendant that the plaintiff would need time to purchase materials to schedule fabrication and to make shipment. (259)

20. On June 20, 1959, the defendant received at its office in Union City, New Jersey a copy of the plaintiff's form of acknowledgment (Ex. 4) which refers to defendant's purchase order No. 28380. (9) Robinson did not receive any further communication from the defendant regarding the acknowledgments that had been issued in...