Beech Aircraft Corp. v. Flexible Tubing Corp.
| Decision Date | 17 May 1967 |
| Docket Number | Civ. No. 10085. |
| Citation | 270 F. Supp. 548 |
| Court | U.S. District Court — District of Connecticut |
| Parties | BEECH AIRCRAFT CORPORATION v. FLEXIBLE TUBING CORPORATION and Vernon Hines, d/b/a Thermo Tech Products Company. |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
William M. Mack, Thompson, Weir & Barclay, New Haven, Conn., for plaintiff.
John D. Fassett, Curtis H. Barnette, Wiggin & Dana, New Haven, Conn., Walter Shepard, New York City, for Flexible Tubing Corp. and Vernon Hines.
This is a suit for breach of warranty. The plaintiff buyer seeks rescission of a sale of specialized hoses on the ground of the seller's breach. The defendant counterclaims for a liquidated sum due and owing. Jurisdiction of this court is based on diversity of citizenship. 28 U.S.C. § 1332(a). The amount in controversy is in excess of $10,000.
The plaintiff, Beech Aircraft Corporation (hereinafter "Beech"), is a Delaware corporation with its principal place of business in the State of Kansas and a branch office in Boulder, Colorado. Its business is the manufacture and development of aircraft and supporting systems. The defendant, Flexible Tubing Corporation (hereinafter "Flexible"), is a Connecticut corporation engaged in the manufacture of specialized hosing. Vernon Hines, a citizen of Colorado, is a defendant only as an agent of Flexible by stipulation of the parties.
This action arises out of research and development projects of the American space program. The plaintiff Beech was awarded a government contract for the design of fuel and oxidizer trailers to be used in conjunction with the Titan II rocket program. The prime contractor for the rocket was Martin-Marietta Corporation (hereinafter "Martin").
Titan II was a liquid fueled rocket. Its propellants consisted of Aerozine 50, a 50-50 mixture by weight of unsymmetrical dimethyl hydrazine (hereinafter "UDMH") and anhydrous hydrazine as fuel, and nitrogen tetroxide (hereinafter "N2O4") as oxidizer. Both fuel and oxidizer are extremely toxic and corrosive. They attack and destroy nearly all ordinary materials with which they come in contact. Consequently, the vehicles and systems used in storing, transporting and pumping these propellants must be manufactured from special materials which are "compatible" with these corrosive fluids. Compatibility implies a workable life span for the materials used in conjunction with these fluids, considering cost, use, and the nature of the chemicals.
In November 1960 Beech learned that the Government (Air Force) was about to invite bids on developing and constructing the trailers. After some preliminary investigations and analysis, it submitted a bid and was formally awarded the contract on December 9, 1960. The contract called for the design and manufacture of six 3,000 gallon oxidizer semi-trailers and six 5,000 gallon fuel semi-trailers. As is usual with government contracts, elaborate test procedures were outlined. Beech was to first construct an operating prototype of each type of trailer and subject this unit to extensive tests. Upon successful testing, five additional units were to be furnished.
In order to transport the propellant from the trailer to the rocket, a hose would be utilized. Because of the corrosive and volatile nature of the fluids, the transfer was to be accomplished in a closed system. Thus, two hoses would be utilized; one to deliver the propellant to the rocket and another to return the fumes from the rocket to the trailer. The hoses were to be twenty feet in length and of differing diameters. Each fuel trailer required a three inch transfer hose and a one and one-half inch fume return hose. The oxidizer trailers, because of the greater viscosity of N2O4, required a four inch transfer hose and a two inch fume return hose. The transfer hoses were to be capable of transporting fluid at a rate of 250 gallons per minute and were to be able to withstand certain clearly designated pressures. All hoses were to be furnished with the trailers and would be used in the field with them.
It was against this backdrop that Beech sought to procure suitable hoses. The company was strongly considering the use of convoluted stainless steel hoses. These were of suitable flexibility, and stainless steel was acknowledged to be compatible with both propellants. However, the convolutions by their nature trapped small amounts of the chemicals and resulted in considerable difficulty in cleaning or purging the hose before storage. A smooth bore hose was therefore highly desirable. Such a hose would not only be easy to clean, but would permit lower pumping pressures.
So it came to pass that Beech was in the market for some trailer hose in late December 1960. Wayne Killian, a Beech procurement engineer at the Boulder plant, telephoned Vernon Hines, a hardware supplier in Denver doing business as Thermo Tech Products Company. Hines had previously supplied hardware parts to Beech, and Killian asked him about supplying hoses for the trailers. Hines agreed to come to the Beech plant at Boulder and discuss the company's needs.
The events following were and are crucial to the resolution of this case in that they determine the nature and scope of warranties made. Killian informed Hines of the purpose for and materials with which the hoses would be used. (Killian Dep. p. 60.) Hines was aware that Martin was presently using smooth bore teflon hoses for the same propellants and passed this information on to Killian at this first meeting. Hines and Killian then agreed upon a time for a meeting with Krabbe, a Flexible sales representative, during the first week of January 1961. At this meeting Killian again informed Hines, and in particular Krabbe, of the specific performance standards that the hose would be expected to meet. They in turn responded that they "could meet the intent of the specifications at that time, and that the hoses would be suitable for the particular service involved." (Killian Dep. p. 76.) Krabbe had reports with him concerning tests of the materials comprising the hose but no final reports of the performance of the hose as an integrated unit. Furthermore, Krabbe produced a sample of the hose which was inspected by Killian or his assistant. This sample was intended for Martin and was not left with Beech or its agents for any period of time. Subsequently, another small sample of hose was left with Killian by Hines. (Tr. pp. 177-78.)
Also at this meeting, Krabbe brought out the point that Flexible was manufacturing this hose for Martin in connection with their use of UDMH and N2O4 as propellants for Titan II. Beech could reasonably infer from this statement that the hoses were satisfactory to Martin and would accordingly be suitable for Beech's purposes. Plaintiff relied upon this statement as a representation that the hoses would be suitable for intended purposes.
On January 12, 1961, during this time, Vernon Hines, on behalf of Thermo Tech Products Company, submitted quotations for supplying teflon hoses. (Ex. 5.) A drawing was attached, No. 112-B1, showing a hose entitled "Pressure Hose—For Use with Hydrazine and Nitrogen Tetraoxide sic." (Ex. 6.) A note on this drawing stated: "The Rubber Compound used will be compatible as well as the Teflon." (Emphasis added.) Both the drawing and quotations referred to Thermo Tech part numbers. Accordingly, on January 12, 1961, Killian wrote out an "Engineering Department Purchase Requisition" for one hose of each size. (Ex. 7 & 8.) The Beech purchasing executives, however, deemed this price too high and on January 24, 1961, Hines sent Beech a revised quotation by telegram. (Ex. 9.) The revised prices were based on Hines' acting as a sales representative for the manufacturer Flexible, in lieu of serving as an independent distributor. The defendant has conceded that Hines was acting as its agent in the sale of the hose.
On January 26, 1961, Beech, by A. D. Hickerson, its chief purchasing agent in Wichita, wired Thermo Tech Products (Attn. Vernon Hines) ordering six of each hose size. This telegram (Ex. 10) used Thermo Tech part numbers and indicated that "all items to be per drawing 112-B1" which Hines had previously furnished Beech. Detailed shipping instructions were given. The following day, January 27, 1961, a formal purchasing order (No. 68831-5) (Ex. 11) was sent to Thermo Tech Products Company confirming the telegram. Again Thermo Tech part numbers were used and reference was made to Hines' drawing No. 112-B1. This order was to be effective only on signature of the seller and return of the document to Beech. The order form contained at the bottom of the form surrounded by a heavy black line the following words:
"AGREEMENT: No conditions, terms, or provisions inserted by the Seller in acknowledging and accepting this order shall be effective unless the same are accepted in writing by the Purchaser."
On the back of the purchase order agreement is a paragraph entitled Warranty:
"Seller warrants that all items delivered under this Purchase Order will be free from defects in material and workmanship, that all items will conform to applicable specifications, drawings and samples, and to the extent such items are not manufactured pursuant to detailed designs furnished by Purchaser, that all items will be free from defects in design and suitable for the intended purposes."
On receipt by Thermo Tech, Hines forwarded the order to Flexible at Guilford, Connecticut.1 There is no evidence that this purchase order agreement was ever signed.
Flexible thereupon sent Beech a Sales Order Acknowledgment form. (Ex. O.) Beech denies receipt of any such form. This form is customarily used by Flexible in its course of business. On the reverse side of the customer's copy are found the following Terms and Conditions:
To continue reading
Request your trial
-
Hauter v. Zogarts
...(5th Cir. 1968) 389 F.2d 590, 594; Boeing Airplane Co. v. O'Malley (8th Cir. 1964) 329 F.2d 585, 591; Beech Aircraft Corp. v. Flexible Tubing Corp. (D.Conn.1967) 270 F.Supp. 548, 561; Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 693, 268 P.2d 1041.20 See, e.g., Luque v. McLean (1972) ......
-
AVL Powertrain Eng'g, Inc. v. Fairbanks Morse Engine,
...concluding that money collected would be credited against any damages awarded at trial), with Beech Aircraft Corp. v. Flexible Tubing Corp. , 270 F.Supp. 548, 563–64 (D.Conn.1967) (holding that the plaintiff's use of goods after providing notice of rescission was not reasonably necessary to......
-
Woodruff v. Clark County Farm Bureau Co-op. Ass'n
...them strictly against the seller. Berk v. Gordon Johnson Co., (D.C.E.D.Mich.1964) 232 F.Supp. 682; Beech Aircraft Corp. v. Flexible Tubing Corp., (D.C.Conn.1967) 270 F.Supp. 548; Admiral Oasis Hotel Corp. v. Home Gas Industries, Inc., (1966) 68 Ill.App.2d 297, 216 N.E.2d In Wilson Trading C......
-
Ismert and Associates, Inc. v. New England Mut. Life Ins. Co.
...of original offer amounts to acceptance of counter-offer implicit in late attempt to accept); Beech Aircraft Corp. v. Flexible Tubing Corp., 270 F.Supp. 548, 558 (D.Conn.1967) (under normal circumstances, silence alone does not constitute an expression of acceptance of counter-offer, but po......