Authorized Supply Co. of Arizona v. Swift & Company

• Decision Date: 16 June 1960
• Docket Number: No. 16274.,16274.
• Citation: 277 F.2d 710
• Parties: AUTHORIZED SUPPLY COMPANY OF ARIZONA, a corporation, Appellant, v. SWIFT & COMPANY, a corporation; Arizona York Refrigeration Company, a corporation, and Southern Arizona York Refrigeration Company, a corporation, Appellees. ARIZONA YORK REFRIGERATION COMPANY, a corporation and Southern Arizona York Refrigeration Company, a corporation, Appellants, v. SWIFT & COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

277 F.2d 710 (1960)

AUTHORIZED SUPPLY COMPANY OF ARIZONA, a corporation, Appellant, v. SWIFT & COMPANY, a corporation; Arizona York Refrigeration Company, a corporation, and Southern Arizona York Refrigeration Company, a corporation, Appellees.

ARIZONA YORK REFRIGERATION COMPANY, a corporation and Southern Arizona York Refrigeration Company, a corporation, Appellants, v. SWIFT & COMPANY, a corporation, Appellee.

No. 16274.

United States Court of Appeals Ninth Circuit.

April 21, 1960.

Rehearing Denied June 16, 1960.

May, Lesher & Dees, Tucson, Ariz., for Authorized Supply Co.

Darnell, Holesapple, McFall & Spaid, Tucson, Ariz., for Arizona York Refrig. Co.

Boyle, Bilby, Thompson & Shoenhair, Richard B. Evans, B. G. Thompson, Jr., Tucson, Ariz., for appellee.

Before ORR, POPE and JERTBERG, Circuit Judges.

PER CURIAM.

We granted appellee Swift & Company's petition for rehearing in order to consider such appellee's contention that our decision reported in 271 F.2d 242 sanctions partial rescission of an indivisible, non-severable contract for the sale of goods.

Our conclusions in that opinion were predicated on the following statement which appears on page 244:

"It is clear from the pleadings, the evidence, and the plaintiff\'s brief filed in this Court that plaintiff seeks recovery of damages against defendants only on a theory of breach of express and implied warranties of a contract for the sale of goods."

We adhere to the conclusions stated in that opinion based on the quoted statement. On this rehearing appellee Swift & Company has practically, if not completely, abandoned the theory upon which the case was presented to us, both by briefs and oral arguments — i. e., that the transaction between appellee Swift & Company and appellants Arizona York Refrigeration Company and Southern Arizona York Refrigeration Company is a contract for the sale of goods falling within the confines of the provisions of the Uniform Sales Act, Section 44-201 et seq. of Arizona Revised Statutes. In its brief filed after rehearing was granted appellee Swift & Company states:

"In the final analysis, the case before this court involves essentially three parties and two separate transactions, one a sale and the other a contract for work, labor and materials. The transaction between two of the parties — Authorized Supply and Arizona York — wherein the former furnished the latter refrigerator coils to be installed in Swift\'s plant, was without doubt a sale under the Uniform Sales Act. On the other hand, the transaction between Swift and Arizona York whereby the latter agreed to the installation of a complete, fully automatic refrigeration system in the former\'s plant was a contract for work, labor and materials."

No such contention appears in such appellee's brief filed prior to the original hearing, nor was it mentioned by such appellee on oral argument.

Before considering Swift & Company's contention as against appellants Arizona York Refrigeration Company and Southern Arizona York Refrigeration Company, we will dispose of the appeal of appellant Authorized Supply Company of Arizona from the judgment over rendered in favor of the other appellants. We are satisfied that the transaction between Authorized Supply Company of Arizona and Arizona York Refrigeration Company, a corporation, is a contract for the sale of goods and within the purview of Section 44-201 et seq. of Arizona Revised Statutes. The situation existing between these two parties was completely covered in our original opinion and for the reasons and on the grounds stated, we adhere to our original opinion reversing such judgment.

We have re-examined the entire record and have reached the conclusion that in the interest of justice we should consider appellee Swift & Company's new contention on this rehearing regardless of such appellee's failure to present such contention on the original appeal.

Our re-examination of the record has convinced us that the contract between appellee Swift & Company and appellants Arizona York Refrigeration Company and Southern Arizona York Refrigeration Company is not a contract for the sale of goods within the meaning...