Holland Furnace Co. v. United States, No. 10216

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: HICKS, ALLEN, and MARTIN, Circuit
• Citation: 158 F.2d 2
• Parties: HOLLAND FURNACE CO. v. UNITED STATES. BOYD v. SAME.
• Decision Date: 04 December 1946
• Docket Number: 10215.,No. 10216

158 F.2d 2 (1946)

HOLLAND FURNACE CO.
v.
UNITED STATES.
BOYD
v.
SAME.

Nos. 10216, 10215.

Circuit Court of Appeals, Sixth Circuit.

December 4, 1946.

158 F.2d 3

Wm. E. Knepper, of Columbus, Ohio (Paul E. Cholette, of Grand Rapids, Mich., and Wm. E. Knepper, of Columbus, Ohio, on the brief), for appellants.

Ray J. O'Donnell, of Columbus, Ohio (Ray J. O'Donnell, of Columbus, Ohio, on the brief), for appellee.

Before HICKS, ALLEN, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

Appellants Holland Furnace Company, a corporation, and William Boyd were fined respectively $7,500 and $1,000 upon conviction by jury verdict in the district court on a criminal information charging violation of General Limitation Order No. L79 of the War Production Board, as amended April 25, 1944.

The criminal information charged that the individual appellant, the corporate appellant, and C. A. Hall delivered to Charles E. Bowen, Sr., a heating furnace as defined in War Production Board Order No. L22, well knowing the required consumer's certificate signed by Bowen to be false. The pertinent portions of the order which appellants were found guilty of violating provided that no person may deliver a heating furnace of the character delivered, except to a consumer for installation to replace existing equipment which is worn out, damaged beyond repair, or destroyed, and that no delivery may be made to replace usable equipment or make a substitution which would provide more extensive facilities than are necessary to replace the part, or parts, worn out, damaged, or destroyed. The applicable order provides, further, that no seller may deliver such heating furnace unless he obtains a consumer's certificate substantially as defined; that no one may deliver such furnace relying upon a certification being true, if he knows or should know it to be false; but that anyone who reasonably relies on the truth of the certificate is not to be held responsible if it turns out to be false. Provision was made for punishment by fine, or imprisonment, or both, for wilful violation of the order.

The Holland Furnace Company, a Delaware corporation with its main office in Holland, Michigan, and with some 300 main branches and 100 subbranches, did business in approximately 40 states and had been engaged in the heating business about 40 years. Among its 4,000 employees, the acquitted defendant, C. A. Hall, was its manager in Columbus, Ohio, and the convicted appellant, William Boyd, was a senior salesman who, at the time of the transaction in question on or about July 20, 1944, worked out of its Columbus office.

Charles E. Bowen, who described himself as in "charge" of two Methodist Churches and as a salesman for a milk company, testified that, on the afternoon of June 7, 1944, while his wife was down town, a man knocked on the door and, upon entering the house, said that he represented the Holland Furnace Company and was soliciting business pertaining to cleaning and recementing furnaces; and that he would like to see the Bowen furnace. Being a prudent husband, Mr. Bowen said, "my wife is not here"; and invited the solicitor to come back in the evening, which he did. After the wifely approval had been obtained and the furnace, which was only two years old, had been inspected, the solicitor stated that the furnace would be torn down and an engineer sent out to inspect it for defects. He took an order from the Bowens for cleaning and repairing the furnace at a cost of $28.

Bowen testified further that, on the following morning, "men came out and tore the furnace out"; and that appellant Boyd came out later in the day and represented himself to be the engineer. He and Mr. and Mrs. Bowen went down into the basement to inspect the furnace. During the inspection, Boyd pointed out numerous alleged defects and, according to Bowen, said: "It is a wonder you folks haven't been asphyxiated before this. Gas is escaping through those places burning out." Boyd declared that the furnace could not be repaired, and said: "The best thing for you folks to do is to buy a new furnace."

158 F.2d 4

"How in the world can we buy a new furnace so soon," asked Bowen, "in regard to this war business?" Boyd replied: "We can get it for you if you want it."

After they had been shown different types of Holland furnaces a contract for a new furnace was executed by Bowen and his wife; and, simultaneously, a consumer's certificate in the following language, which Bowen stated he did not read and the contents of which he did not know, was signed by him: "I need the item included in this purchase to replace equipment worn out, damaged beyond repair, or destroyed. I will not use it to replace usable equipment or to make a substitution which would provide more extensive facilities than are necessary to replace the parts which are worn out, damaged, or destroyed."

Mrs. Bowen corroborated the testimony of her husband concerning his failure to read the consumer's certificate, and asserted that Boyd had several sheets of paper fastened together and just turned each over and said, "Sign there." Being dissatisfied after the new furnace was delivered, the Bowens refused to pay for it, were sued in a Court of Common Pleas of Ohio for the contract price, and filed a cross action based on fraud and misrepresentation. The state court litigation was dismissed without prejudice.

The old furnace was removed by Parker, who was engaged in the trucking business and worked for the Holland Furnace Company during the summer of 1944. Under his arrangement with the company, he was to junk old furnaces taken to his yard and to account to the corporation for the same on the basis of $15 a ton. He delivered the new furnace to the Bowen home at the time he picked up the old one, which he set up in his yard with the intention of using it in his own home. However, after taking the furnace to his basement, he sold it for $35 to Fred C. Hauck, Assistant Manager of the Columbus Better Business Bureau. Hauck testified that he rode on the truck which transported the furnace from Parker's basement to the Home Furnace Company, where he stored it and where it remained until removed to the United States District Courtroom for exhibition upon the trial of the instant case.

Fred W. Gurley, Chief Heating Inspector for the City of Columbus, Ohio, identified the furnace produced in the courtroom as that which he had inspected, when new, at the Bowen home in 1942. The furnace then had, in his opinion, a normal serviceable life of from fifteen to twenty years. Arthur D. Bogen of the Home Furnace Company, an expert who had installed the furnace in Bowen's home in 1942, swore that, except for being rusty, the furnace was in excellent condition when exhibited in the courtroom.

In addition to Gurley and Bogen, two other experts, Favret and Norland, members of the Heating Examining Board of Columbus, identified the furnace exhibited in the courtroom as the same as that which they had inspected at the Home Furnace Company. Three of these experts declared that the only thing wrong with the furnace was a broken shaker handle, and the fourth stated that there was a broken shaker arm and a broken shaker lever.

Boyd, in his own defense, testified that some of the important parts of the exhibited furnace were not the same as those of the furnace which had been in the Bowen basement when he made the contract to deliver a new furnace. He described alleged defects and damaged parts in the Bowen furnace, and swore that in his opinion it qualified for replacement under the General Limitation Order, L79, of the War Production Board; but he admitted that the Bowen furnace had looked like a "fairly new furnace" and that he had been surprised to find defects in such a new furnace.

Weyenberg, Chief Engineer of the Holland Furnace Company, an expert witness for defendants, pointed out certain defects in the exhibited furnace, but admitted that it was not damaged beyond repair. Later, after Boyd had testified, he corrected his testimony and stated that certain defects to which he had previously alluded were not defects at all.

Viewing the testimony of all the experts, the inference is inescapable that the furnace...