County Asphalt, Inc. v. Lewis Welding & Eng. Corp., No. 742
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | HAYS and FEINBERG, Circuit , and BLUMENFELD |
| Citation | 444 F.2d 372 |
| Parties | COUNTY ASPHALT, INC., Plaintiff-Appellant, v. The LEWIS WELDING & ENGINEERING CORPORATION, Defendant-Appellee. |
| Docket Number | Docket 35833.,No. 742 |
| Decision Date | 11 June 1971 |
444 F.2d 372 (1971)
COUNTY ASPHALT, INC., Plaintiff-Appellant,
v.
The LEWIS WELDING & ENGINEERING CORPORATION, Defendant-Appellee.
No. 742, Docket 35833.
United States Court of Appeals, Second Circuit.
Argued April 26, 1971.
Decided June 11, 1971.
William E. Kelly, New York City (Casey, Lane & Mittendorf, New York City, on the brief; and Smith, Ranscht, Pollock & Barnes, White Plains, N. Y., on the brief), for plaintiff-appellant.
Edward E. Rigney, New York City (Alexander & Green, New York City, Eugene Z. DuBose, Klaus H. Jander, Richard T. McDermott, New York City, of counsel), for defendant-appellee.
Before HAYS and FEINBERG, Circuit Judges, and BLUMENFELD, District Judge.*
BLUMENFELD, District Judge:
This is a diversity action claiming damages for negligence, breach of contract and breach of warranties arising out of the defendant's performance of agreements to furnish and erect two asphalt plants for the plaintiff. The defendant
I.
To consider what the plaintiff urges as error committed by the District Court in interpreting the jury's answers to the interrogatories, it is necessary to set out a brief over-view of the facts.
In December of 1964, the plaintiff, which had several asphalt plants, decided to replace two of them, one at Tarrytown and another at West Nyack, New York, with new equipment so as to be able to comply with newly adopted New York State specifications for base and finish materials used for road building.1 After direct negotiations between the parties, it was agreed that the defendant would furnish and erect two asphalt plants at West Nyack and Tarrytown for $460,000 in cash and the two old plants which the defendant accepted as trade-ins. A separate written contract for the purchase of each plant was executed, each containing identical terms insofar as the issues raised here are concerned.
At the outset, the defendant was faced with the problem of obtaining unionized workers at West Nyack and Tarrytown. To meet that difficulty, the parties entered into an oral supplemental agreement under which the plaintiff would act as the nominal employer of such workers as the defendant requested, and back-charge the defendant for the expenditures for labor and materials which it incurred on its behalf. The principal factual issues at trial were whether the defendant had substantially performed its contracts and whether it was guilty of breaches of warranties, with respect to the quality and performance capabilities of the plant equipment. Not in dispute was the fact that the plaintiff owed a balance of $385,229.25 on the purchase price before set-off of the back-charges for labor and materials.
The defendant counterclaimed for this unpaid balance of the purchase price and for the rental value of one plant which the plaintiff had continued to use after it had transferred it to the defendant as part of the purchase price. In addition, the defendant sought damages for the plaintiff's conversion of the two new plants brought about by its making and filing a financing agreement pledging the two plants as security for loans from a New York bank in the amount of $600,000 in violation of the contract provision that title was to remain in the defendant until final payment was made.
At the close of a nineteen day trial, the court charged the jury clearly and succinctly on all of the issues in the case. The plaintiff does not assert error in the charge. Its contention that it was error to deny it a jury trial on the question of consequential damages will be considered later.
II.
At the completion of his charge, the judge submitted to the jury appropriate forms for a general verdict with special interrogatories and directed them to answer the interrogatories and render a general verdict. The jury returned a general verdict for the defendant in the amount of $226,000. Contending that there was an irreconcilable conflict between the jury's answers to the special interrogatories and the general verdict, the plaintiff moved to reduce the judgment to $66,000 or for a new trial. Judge Croake concluded that the general verdict and the replies to the special interrogatories were entirely consistent and harmonious.
The plaintiff's principal contention on this appeal is that the jury's answers to the interrogatories mandated a reduction of the general verdict for the defendant to the amount of $66,000. The form submitted to the jury, and as answered by them, is shown to the extent that is relevant here:
"Please Read All Questions Before Proceeding to Answer Any of Them.
"General Verdicts With Special Interrogatories
"I — Questions in the nature of a general verdict.
"1. Is the plaintiff (County Asphalt) indebted to the defendant (Lewis Welding) for any amount not offset by the total of backcharges and damages, if any, found by you in your answers to the special interrogatories below?
"Answer (yes or no) Yes
"1a. If your answer to Question 1 is `yes,' state the amount in dollars. $226,000
"2. If the answer to Question No. 1 is `No,' is the defendant (Lewis Welding) indebted to the plaintiff (County Asphalt) for any amount the latter expended over and above the unpaid balance of the purchase price?
"Answer (yes or no)
"2a. If your answer to No. 2 is `yes,' state the amount in dollars. $
"II — Special Interrogatories.
"1. Was there substantial performance on the part of defendant (Lewis Welding) of the contracts entered into with plaintiff (County Asphalt) on December 22, 1964?
"Answer (yes or no) Yes
"2. Is there a balance due defendant (Lewis Welding) from the total purchase price of the plants sold and erected at Tarrytown and West Nyack?
"Answer (yes or no) Yes
"2a. If your answer to Question No. 2 is `No,' proceed to Question No. 3. If `Yes,' what is the amount of the balance due the defendant?
"Answer (a dollar amount) $226,000
"3. Was there a supplemental agreement entered into by the parties wherein the plaintiff (County Asphalt) agreed to supply labor, materials, and equipment as needed by the defendant (Lewis Welding) in the erection of the plants, and to pay for said labor, material and equipment, with the defendant agreeing to repay the plaintiff on being `backcharged' by it?
"Answer (yes or no) Yes
"3a. If your answer to Question No. 3 is `No,' disregard this question and proceed to Question No. 4. If your answer is `Yes,' what was the reasonable amount that the plaintiff (County Asphalt) should have backcharged the defendant (Lewis Welding) for moneys expended by it in payment for employees, materials, or equipment?
"Answer (a dollar amount) $160,000
"4. The contracts in suit state:
`* * * The Company will repair or, at its option, replace any part or parts of the equipment which upon examination are determined to be defective or nonconforming under the Company's Warranty and in respect of which the Company was notified in writing, as hereinabove provided, within the warranty period. Such part or parts should, upon notification from the Company, be shipped to the Company, f. o. b. the Company's plant, for its examination.'
"Did the plaintiff (County Asphalt) comply with these provisions by:
"i. Giving notice to defendant (Lewis Welding)?
"Answer (yes or no) Yes
"ii. Shipping as requested?
"Answer (yes or no) Yes
"iii. Allowing the defendant (Lewis Welding) reasonable access to the plants for purposes of repair or replacement?
"Answer (yes or no) Yes
"4a. Did the defendant (Lewis Welding) comply with these provisions by repairing
"Answer (yes or no) No
"5. Was the performance by the defendant (Lewis Welding) negligent, as that term has been defined to you in the discharge of its contractual duties?
"Answer (yes or no) No"
The function of the court in deciding whether an answer is "inconsistent with the general verdict" under Rule 49(b),2 which is applicable here, was recently stated by us:
"* * * we must struggle...
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Soto v. City of Sacramento, No. Civ. S-79-680 LKK.
...(if such the report is), the jury must determine whether to accept it. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 444 F.2d 372, 378 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 Plaintiff also argues that even if his isolation were proper, and even ......
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Fleischmann Distilling Corp. v. Distillers Co. Ltd., No. 73 Civ. 5467.
...passed in the United Kingdom. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300, 1303 (S.D.N.Y.1970), aff'd, 444 F.2d 372 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L. Ed.2d 252 (1971); El Hoss Engineering & Transport Co. v. American Independen......
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Long Island Lighting Co. v. Transamerica Delaval, No. 85 Civ. 6892 (GLG).
...has acted in bad faith. See County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300, 1308 (S.D.N. Y.1970), aff'd, 444 F.2d 372 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971); Jones & McKnight Corp. v. Birdsboro Corp., 320 F.Supp. 39, 4......
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Cayuga Harvester, Inc. v. Allis-Chalmers Corp., ALLIS-CHALMERS
...587 F.2d 1363 [CCA 9th, 1978]; County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300, 1309 [S.D.N.Y.1970], affd. 444 F.2d 372 [CCA 2d, 1971], cert. den. 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252; Johnson v. John Deere Co., 306 N.W.2d 231, 236 [S.D.1981], supra). P......
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Soto v. City of Sacramento, No. Civ. S-79-680 LKK.
...(if such the report is), the jury must determine whether to accept it. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 444 F.2d 372, 378 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 Plaintiff also argues that even if his isolation were proper, and even ......
-
Fleischmann Distilling Corp. v. Distillers Co. Ltd., No. 73 Civ. 5467.
...passed in the United Kingdom. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300, 1303 (S.D.N.Y.1970), aff'd, 444 F.2d 372 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L. Ed.2d 252 (1971); El Hoss Engineering & Transport Co. v. American Independen......
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Long Island Lighting Co. v. Transamerica Delaval, No. 85 Civ. 6892 (GLG).
...has acted in bad faith. See County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300, 1308 (S.D.N. Y.1970), aff'd, 444 F.2d 372 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971); Jones & McKnight Corp. v. Birdsboro Corp., 320 F.Supp. 39, 4......
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Cayuga Harvester, Inc. v. Allis-Chalmers Corp., ALLIS-CHALMERS
...587 F.2d 1363 [CCA 9th, 1978]; County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300, 1309 [S.D.N.Y.1970], affd. 444 F.2d 372 [CCA 2d, 1971], cert. den. 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252; Johnson v. John Deere Co., 306 N.W.2d 231, 236 [S.D.1981], supra). P......