Fast, Inc. v. Shaner
| Citation | 181 F.2d 937 |
| Decision Date | 28 April 1950 |
| Docket Number | No. 9999.,9999. |
| Parties | FAST, Inc. v. SHANER et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Thomas Raeburn White, Philadelphia, Pa. (W. Thomas McGann, Moorestown, N. J., C. Laurence Cushmore, Jr., White, Williams & Scott, Philadelphia, Pa., on the brief), for appellant.
Frank Rogers Donahue, Philadelphia, Pa. (Robert V. Bolger, II, Philadelphia, Pa., on the brief), for appellees.
Before BIGGS, Chief Judge, and O'CONNELL and KALODNER, Circuit Judges.
The plaintiff, a corporation specializing in excavation and related work, here appeals from a judgment entered against it on a jury verdict. The action was instituted to recover damages for breach of an alleged contract which required the defendants, who are partners specializing in railroad construction, to award a subcontract to the plaintiff. In addition to contesting the terms of the understanding, the defendants set up the defense of impossibility of performance, asserting that the owner of the premises on which the work was to be done rejected the plaintiff as a subcontractor and awarded the prime contract to the defendants on condition that the subcontract be given to another firm. The plaintiff contends that the trial court erred in its determination as to the composition of the defense of impossibility of performance under the law of New Jersey, and seeks either direction of judgment in this Court, or a new trial.
The record discloses that the judgment was entered on the jury verdict on May 18, 1948. On May 21, 1948, the plaintiff filed its motions for a new trial and for judgment pursuant to Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. Thereafter, on April 29, 1949, the learned District Judge filed his opinion in the matter in the course of which he stated that the motions were denied. The docket entry of April 29, 1949, reads, "Opinion * * * denying motion for judgment n. o. v. and for a new trial filed."
The state of the record in this case prevents us from reaching the merits of the controversy, for the situation presented is identical with that in Healy v. Pennsylvania Railroad Company, 3 Cir., 181 F.2d 934.
It should be clear from the decisions of this Court in both In re D'Arcy, 3 Cir., 1944, 142 F.2d 313, and Healy v. Pennsylvania Railroad Company, supra, that we intend no undue circumscription of the devices, or the language, which may be employed below to dispose effectively of...
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Healy v. Pennsylvania R. Co.
... ... 254, 89 L. Ed. 160; Fleming v. Borders, 9 Cir., 1947, 165 F.2d 101; Southland Industries, Inc. v. Federal Communications Commission, 1938, 69 App.D.C. 82, 99 F.2d 117. These cases are apposite ... ...
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In re Chelsea Hotel Corporation
...v. Estate of Bedford, 1945, 325 U.S. 283, 65 S.Ct. 1157, 89 L.Ed. 1611; In re D'Arcy, 3 Cir., 1944, 142 F.2d 313; Fast, Inc., v. Shaner, 3 Cir., 1950, 181 F.2d 937. Here it appears that no such order has as yet been entered and that the petition of October 31st is, therefore, technically st......
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Sonnenblick-Goldman Corp. v. Nowalk
...Defendant then had until the end of November 12, 1968, to serve the motion upon plaintiff. As this court stated in Fast, Inc. v. Shaner, 181 F.2d 937 at 938 (C.A.3, 1950): "* * * The primary responsibility rests upon the litigants to see to it that their record is in proper form at all time......
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O'BRIEN v. Harrington
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