Hawkins v. Frick-Reid Supply Corporation
Decision Date | 17 May 1946 |
Docket Number | No. 11403.,11403. |
Citation | 154 F.2d 88 |
Parties | HAWKINS v. FRICK-REID SUPPLY CORPORATION. |
Court | U.S. Court of Appeals — Fifth Circuit |
Ben D. Clower, of Dallas, Tex., for appellant.
G. Ellis Gable, of Tulsa, Okla., for appellee.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
J. C. Hawkins, successor to the rights of Hawkins & Howell Drilling Company, brought this suit to recover from Frick-Reid Supply Corporation the purchase price of certain drill pipe.
The contention of the plaintiff is that the drill pipe was defective and not suitable for the purposes for which it was manufactured; that it was made of soft material not suitable for drilling oil wells; that in trying to use it in the drilling of an oil well the pipe had worn more than a quarter of an inch; and that much of it finally twisted in two. The contention was further made that there was an implied warranty that the pipe was usable and suitable for the purpose for which it was purchased, and that there was an express warranty set out in the invoice contract on which the pipe was shipped and delivered.
The defendant's answer denied that the drill pipe was defective; that any implied or express warranty was made concerning the pipe, and also set up as a defense limitations and laches.
It is without dispute that the plaintiff had purchased material, machinery and equipment from the defendant throughout the years amounting to many thousands of dollars, and on each purchase made, there was used an invoice of like import and containing substantially the same provisions as the one on which the shipment of pipe here was made. We are warranted, therefore, in holding that the invoice was the contract between the parties, and that decision must turn upon the following clause of the invoice contract:
The court awarded summary judgment in favor of the defendant upon the ground that the drill pipe was machinery or machinery parts and not material within the meaning of the invoice clause.
In the absence of anything to show that a particular meaning was intended, the words employed by the parties in the invoice contract are to be given their ordinary and popular meaning. Material is defined in Webster's New International Dictionary as:
Machinery is defined as:
When we come to apply these definitions to the drill pipe here under consideration, we must walk with a question mark in each hand. It is referred to in the record as a "string of drill pipe." Certain it is that when it becomes attached to a line of pipe in a well with a rotary drill it becomes machinery, but apart and before being attached it may be material.
Take for illustration, wire cable and heavy manila rope: Wrap and coil these two articles and they become material. They might be shipped for a specific purpose and yet upon arrival they could be used for many purposes. When used in a...
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...is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief."); Hawkins v. Frick-Reid Supply Corp., 154 F.2d 88, 89 (5th Cir.1946) ("While the pleading appears to be somewhat confused, nevertheless, ' "... every final judgment shall grant the rel......
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...issue of fact to be tried. Any doubt as to the existence of a material fact must be resolved against the movant. Hawkins v. Frick-Reid Supply Corp., 154 F.2d 88 (5th Cir.1946). F.R.Civ.P. Rule 56 imposes a dual burden on the movant, i.e., to establish the absence of a genuine issue of mater......
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...any doubt as to the existence of a material fact must be resolved against the party moving for summary judgment. Hawkins v. Frick Reid Supply Corp., 154 F.2d 88 (5th Cir.1946). Such a motion is to be liberally construed in favor of the party opposing the motion. Purity Cheese Co. v. Frank R......
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...existence of a genuine issue of material fact must be resolved against the party moving for summary judgment. Hawkins v. Frick-Reid Supply Corp., 5 Cir. 1946, 154 F.2d 88, 89-90. In passing on such a motion, the court should not assess the probative value of any of the evidence. This was ma......