Brunswick-Balke-Collender Co. v. Foster Boat Co.

• Citation: 141 F.2d 882
• Decision Date: 12 April 1944
• Docket Number: No. 9634.,9634.
• Parties: BRUNSWICK-BALKE-COLLENDER CO. v. FOSTER BOAT CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

141 F.2d 882 (1944)

BRUNSWICK-BALKE-COLLENDER CO. v. FOSTER BOAT CO.

No. 9634.

Circuit Court of Appeals, Sixth Circuit.

April 12, 1944.

Morton Keeney, of Grand Rapids, Mich. (Butterfield, Keeney & Amberg, Morton Keeney, and Harry Shulsky, all of Grand Rapids, Mich., on the brief), for appellant.

Charles H. Menmuir, of Traverse City, Mich., and Howard L. Campbell, of Manistee, Mich. (Meggison & Menmuir, of Traverse City, Mich., and Campbell & Campbell, of Manistee, Mich., on the brief), for appellee.

Before HICKS, SIMONS, and HAMILTON, Circuit Judges.

SIMONS, Circuit Judge.

The appeal is from a judgment awarding damages to the appellee for the breach, by the appellant, of a contract entered into on October 25, 1940, for the manufacture and sale of rough bowling pin blocks which the appellee was to make and the appellant to buy. None were ever fabricated and each of the litigants charged the other with an anticipatory breach excusing performance. The cause was submitted to a jury and the appellant's grievance is failure of evidence to sustain the verdict and so error by the court in denying its motion for peremptory instructions, and likewise denial of its motion to set aside the verdict and to enter judgment in its favor, or, in the alternative, for new trial.

The appellant is the well-known manufacturer of bowling and billiard supplies, and contracted with the appellee, a small boat builder at Charlevoix, Michigan, for supplying it with the rough-turned blocks from which tenpins are made. By the terms of the agreement the appellant was to pay for the blocks at prices ranging from 7¢ to 36¢ per pin, according to grade. The quantity to be manufactured was to comprise 200,000 rough-turned tenpin blocks, 60,000 rough duck pin blocks, and 30,000 rough candle pin blocks, with delivery upon a schedule to be later agreed upon, at the appellant's factory in Muskegon. Payment was to be made, upon delivery, at the rate of 23¢ for each block in a full car shipped, provided the car contained at least 50% of the highest grade of blocks, with final settlement to await ultimate grading as disclosed by the buyer's finishing operations at its factory. The contract was to take effect immediately and to continue up to and including December 31, 1941.

The appellee, at its plant in Charlevoix, had only such general woodworking machinery as is required for its boat building enterprise, and so the appellant agreed to furnish special machinery consisting of a corner bolter, lathe, drying oven and coating machine with the necessary equipment therefor. Some of this machinery was shipped, but up to the middle of February, 1941, the appellee was still without knives for the lathe, without the drying oven, part of the bolter, and its motor and starter switch, although it had been assured by the plaintiff that it could be in production by December 1. Immediately after obtaining the contract, Foster, the president of the appellee, advertised for capital to enable him to perform. As a result, Stites, a man with some woodworking experience, entered the appellee's employ as production manager, and loaned it $4125. The appellee moved some of its own machinery to make room for the new equipment, obtained a $7000 line of credit on a secured basis from the local bank, made some tentative agreements and one or two firm contracts for pin logs, received delivery of a few logs at its plant, installed a new heating plant and power line, which, though of general utility, were acquired with the pin contract primarily in mind.

There is no dispute that the appellant failed to furnish Foster with all of the equipment it had agreed to provide. There is also no dispute that Foster failed to set up such of the machinery as it had received, and failed to have ready at its plant a sufficient quantity of hard maple logs with which to begin operations. So the dispute bears two aspects — the appellee contending that its failure to perform was due to the breach of the appellant in not sending it the equipment agreed upon, with the time of the breach being identified as of February 13, 1941, when, upon its inquiry as to the date of shipment of the balance of equipment the appellant replied that its production men were busy with active tenpin producers and that it must use its equipment to best advantage. The appellant denies that it breached the contract, but contends that if so, performance was excused because the appellee was unwilling and unable to perform even if all of the agreed equipment had been supplied. Foster sued for damages because of expenditures, commitments, and lost profits, and Brunswick counterclaimed for loss of the gains it would have made in the sale of finished pins had the contract been completed.

Upon the question whether Brunswick first breached its contract being raised by a motion for directed verdict and a motion for judgment notwithstanding the verdict, the evidence must be considered in the light most favorable to the plaintiff, and all conflicts resolved in its favor. Michigan law is, in this respect, consonant with general law. Thurkow v. City of Detroit, Michigan, 292 Mich. 617, 291 N.W. 29, and cases there cited. So viewed, there was evidence to sustain the verdict. It was within the competence of the jury to find that though Brunswick had all the agreed equipment at its Muskegon plant and could have delivered it to the plaintiff at Charlevoix in 24 hours, it never sent the knives for the lathe, the drying oven, or the saw, motor and switch for...