Gill Mfg. Co. v. Hurd
| Decision Date | 01 January 1883 |
| Citation | 18 F. 673 |
| Parties | GILL MANUF'G CO. v. HURD. |
| Court | U.S. District Court — Northern District of Ohio |
W. I Gilmore and Swayne, Swayne & Hayes, for plaintiff.
Scribner Hard & Scribner, for defendant.
WELKER J., (charging jury.)
The plaintiff, an Ohio corporation, sues the defendant, a citizen of the state of Connecticut, and in its petition alleges that on the thirty-first day of March, 1880, it made a contract with the defendant to manufacture for the defendant, and deliver to him at its shops, in the city of Columbus, within a reasonable time thereafter, 100 merchantable box cars, to be painted white, and lettered as defendant might direct that in consideration thereof the defendant agreed to pay the plaintiff the sum of $580 for each car, to be paid for on delivery, or a reasonable time thereafter; that the plaintiff purchased the materials for the cars, and immediately proceeded to construct the same, and within a reasonable time thereafter, to-wit, on the tenth of September, 1880 completed the same, except the lettering thereof, and was ready and willing to letter the same as directed by the defendant, and ready to deliver the same at its shops according to the contract on said tenth of September, 1880, of all which the defendant had due notice; that the defendant neglected and failed to inspect the cars or direct their lettering at the time of their completion, and neglected to accept and pay for the same, although duly notified of the completion of the cars; that thereupon the plaintiff sold the cars at the sum of $500 net, which was the highest price that could be obtained in the market. Plaintiff also alleges that it has been delayed in receiving its money, and put to great trouble and expense in repainting the cars, changing from white to merchantable color. It claims to have been damaged in the sum of $12,000, for which it asks judgment.
The defendant in his answer denies entering into any contract with the plaintiff for the manufacture of any box cars for him, and denies that the plaintiff manufactured any box cars for him. He admits there were some negotiations between them looking towards a possible contract for building box cars for him by the plaintiff, if they could agree upon terms and conditions upon which they should be built, but did not ripen into an agreement; that in the negotiations defendant informed the plaintiff that if a contract was made he should require from the plaintiff a warranty from responsible parties that the wheels and springs of the proposed cars should continue serviceable for the period of five years; that no such warranty was ever given or tendered, nor were any specifications drawn or submitted to defendant therefor; that within a few days after said negotiations, and before any work was done by the plaintiff upon the cars alleged to have been manufactured, the defendant gave plaintiff written notice not to build any cars for him.
The plaintiff replies, denying that in the negotiations the defendant required a warranty for the wheels and springs as alleged, and denies that any specifications were to be drawn or submitted to the defendant. It also denies that at any time before work was commenced the defendant gave it written notice not to build any cars for him.
These pleadings form the issue you are to determine.
The first and leading question of fact for you to determine from the evidence is, was there a contract made between the parties, as alleged in the petition?
The plaintiff has the burden upon it to establish, by a fair preponderance of evidence, the making of the contract as it alleges. In order to constitute a contract, the minds of the parties must meet,-- they must agree to the terms,--and both parties must understand, or should have understood from what passed between them, the terms of the agreement. If any part of the contract was not settled, or a mode...
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