Bowser, Inc. v. Hamilton Glass Co.
| Decision Date | 06 November 1953 |
| Docket Number | No. 10765.,10765. |
| Citation | 207 F.2d 341 |
| Parties | BOWSER, Inc. v. HAMILTON GLASS CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Henry H. Koven, Howard R. Koven, Charles N. Salzman, Chicago, Ill., for appellant.
Raymond Shaheen, Chicago, Ill., Roger Q. White, Chicago, for appellee.
Before MAJOR, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.
Defendant appeals from a judgment for $4675 entered against it in a cause wherein jurisdiction was invoked because of diversity of citizenship.
Plaintiff, a manufacturer, negotiating with the United States Air Force on a bid to manufacture and deliver certain apparatus for the Air Force, finding itself unable to produce certain of the parts to be supplied, before completing its contract, solicited bids from subcontractors for manufacture of those parts. The articles with which the instant controversy is concerned are 1400 variable reflector glasses. In response to the solicitation, defendant submitted a price of 22¢ each. Thereupon, on December 21, 1948, plaintiff forwarded to defendant its formal purchase order for 1400 glasses at 22¢ each as quoted. This order provided specifically that the goods must conform to "Spec. 93-24794"; that blueprints were attached, and that the products were subject to inspection by the Air Force inspector at defendant's plant. The blueprint bore the recital "Material; Reflector Sight Glass, Spec. 93-24794". Upon receipt of the order, defendant on December 23, 1948, acknowledged its receipt and advised plaintiff that it would have 100 of the plates ready on January 10, and that in case plaintiff desired that the Air Force inspector examine them before defendant proceeded with fabrication of the entire lot, defendant would be glad to be advised promptly of the date when the inspector would arrive.
From this it is clear that the ultimate and final contract consisted of the purchase order for 1400 reflector glasses at 22¢ to be manufactured according to the specifications mentioned, subject to inspection by the United States Air Force, and its acceptance by defendant. The only possibility of uncertainty in the terms is as to the specifications, for the purchase order does not explicitly say that they are those of the United States Air Force; therefore, in that respect, the contract, literally speaking is uncertain. However, that is certain which can be made certain. It appears without dispute that defendant knew that the parts were to be used by the United States Air Force, and that they were to be inspected by an inspector from that Force and that it asked to be advised as to when the inspector would arrive. It seems perfectly obvious to us, as it apparently did to the District Court, that both parties contemplated that the parts to be supplied should comply with the government specifications and that such was the agreed intent and purpose of the two parties to the contract. We think the District Court rightfully concluded, therefore, that a binding contract existed between defendant and plaintiff for the manufacture and delivery of the 1400 reflector glasses in accord with the Air Force specifications.
It is equally clear that defendant failed to check requirements and proceeded with production without knowing or attempting to ascertain whether the articles it was manufacturing were being made in accord with the agreed specifications or otherwise. Learning later from the representatives of the Air Force that its product did not so comply, defendant declined to proceed and asserted it would "cancel" the agreement. Thereupon plaintiff procured the merchandise from another source at an additional expense and loss represented by the amount of the judgment...
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...or implied; "or, it may come into being as a right at law arising from the conduct of the other party." Bowser, Inc. v. Hamilton Glass Co., 207 F.2d 341, 343 (7th Cir. 1953). Equity jurisprudence of Illinois is not radically different from that of other American jurisdictions. Thus, in Oper......
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