FAD ANDREA, INC. v. Dodge, 3815.

• Decision Date: 26 September 1928
• Docket Number: No. 3815.,3815.
• Citation: 28 F.2d 145
• Parties: F. A. D. ANDREA, Inc., v. DODGE
• Court: U.S. Court of Appeals — Third Circuit

28 F.2d 145 (1928)

F. A. D. ANDREA, Inc., v. DODGE^*

No. 3815.

Circuit Court of Appeals, Third Circuit.

September 26, 1928.

Allen S. Olmsted, 2d, and Saul, Ewing, Remick & Saul, all of Philadelphia, Pa. (Charles E. Francis, of New York City, of counsel), for plaintiff in error.

George G. Chandler, Wayne P. Rambo, and Robt. T. McCracken, all of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

This writ of error is directed to the judgment for $59,065.70 entered on a verdict rendered at the second trial of the case. The main facts may be found in this court's opinion reviewing the first trial, reported in F. A. D. Andrea, Inc., v. Dodge, 15 F.(2d) 1003. For purposes of this review it will be enough to state that the action is in assumpsit to recover damages for breach after part performance of several contracts wherein Dodge, Receiver, engaged to make and sell and the Andrea corporation promised to take and pay for a large number of radio cabinets of specified designs and required quality of finish. Many turned white. After about 11,000 had been delivered and accepted Andrea canceled the contracts and Dodge brought this suit and later had the judgment now here on Andrea's writ assigning manifold errors in the trial. These assignments, which relate mainly to testimony for and against many items of damages, are of that character, not unusual in bitter litigation, which requires a study and understanding of the whole trial, yet their discussion in an opinion would be long and dreary and, in view of the manner in which we have disposed of them, useless. Of the many assignments there are only two that call for discussion. Of these only one is fatal.

The trial had lasted a week. As the case was very complex, covering ten or a dozen claims for damages with corresponding claims for interest, all involving figures, the attorney for the plaintiff, when the jury was about to retire, moved that his calculation of damages be sent out with them. The learned trial judge refused the motion. Eventually the jury returned with a verdict "that all claims of the plaintiff should be paid." While it showed the judgment of the jury, that, of course, was not a proper verdict. The trouble was manifest. The learned trial judge, realizing the impossibility of carrying a great number of figures in their heads, re-charged the jury and then gave them the plaintiff's calculation of damages, whose mathematical correctness is not questioned, cautioning them:

"In order to lighten your burden, I will send out with you the calculation made by plaintiff's counsel. You are not however to be bound by that. He is only showing what the highest amount is that he claims, and as showing the various items, because I do not see how you can work out a verdict without having some sort of a statement before you as to what has been proved at the trial."

If the learned trial judge erred in handing the jury the plaintiff's calculation, one item of which he had corrected to conform to one of his rulings in the defendant's favor, the error was not saved by an exception; but, even were the matter here on a valid assignment, we would not find error in what he did in the circumstances.

The remaining assignment concerns the allowance by the jury of certain of the plaintiff's claims arising out of a change in the main contracts which provided for a bonus. It seems that in November, 1924, the defendant was anxious for larger deliveries of cabinets than the contracts called for. After conversations and correspondence, the proposition which the defendant finally made to the plaintiff and the plaintiff accepted was:

"Starting December 1, we are willing to allow you a bonus of $1.00 per cabinet for each cabinet that you deliver, provided that deliveries of 1,100 cabinets per week are sustained throughout the balance of the contracts. We are willing to pay you this bonus at the end of each month if your deliveries throughout that month amount to 1,100 or more cabinets each and every week."

This was not a variation of the contracts; it was a modification providing another and higher price for the product, conditioned however upon increased deliveries throughout the remainder of the contracts. It also provided the period for bonus payments, which was to be "at the end of each month," but then only on condition that throughout that month, namely, in each and every week, full deliveries had been made at the new weekly rate. The plain meaning of the latter provision is that, failing to make the newly agreed deliveries "each" week "throughout" a given month, the plaintiff would not be entitled to the bonus on lesser deliveries made in that month. Throughout the first month — December, 1924 — the plaintiff made the required weekly deliveries and presented a bill for the agreed bonus. There is no dispute about that. After Christmas the defendant discovered that it was receiving more cabinets under the bonus arrangement than it could handle; so it addressed a letter to the plaintiff, explaining its difficulties, saying:

"In accordance with our telephone conversation of January 2 with Mr. Brown, it is necessary to ask you to reduce your daily shipments of 175-A and 185-A cabinets to us and to revoke...