Lima Locomotive & Machine Co. v. National Steel Castings Co.

• Decision Date: 17 July 1907
• Docket Number: 1,652.
• Parties: LIMA LOCOMOTIVE & MACHINE CO. v. NATIONAL STEEL CASTINGS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

155 F. 77

LIMA LOCOMOTIVE & MACHINE CO. v. NATIONAL STEEL CASTINGS CO.

No. 1,652.

United States Court of Appeals, Sixth Circuit.

July 17, 1907

Action upon account for goods sold and delivered, and cross-action for damages for breach of contract. Jury waived. The trial judge made a finding of facts and a general finding for the plaintiff for the full amount of the account and against the defendant upon its cross-petition.

On April 10, 1902, the National Steel Castings Company made in writing the following proposition to the Lima Locomotive &amp Machine Company: 'Gentlemen: We make the following proposition for furnishing all your requirements in steel castings for the remainder of the present year at the prices mentioned below, f.o.b. cars at Montpelier, the terms to be thirty days net. You agree to furnish us on or before the 15th of each month the tonnage that you wish to order during the following month. We agree to fill your orders as specified to the amount of this tonnage, and to make such deliveries as you require. ' Then followed a schedule of steel castings and prices per pound. This was accepted in writing by indorsing thereon, at the foot of the proposition 'Accepted April 10, 1902,' and duly signed by the Lima Company. This contract the defendant set out in its cross-petition and averred: First, that the castings for which the plaintiff had sued were ordered and supplied under this contract; second, that the plaintiff had failed and refused, though requested, to supply it with other castings necessary to meet the requirements of its business, and that defendant in consequence had been obliged to contract for same with other founders and had paid for the castings so procured $5,498.24 over and above the contract price with plaintiff.

The defenses to the cross-petition were: First, that the contract was void for want of mutuality; second, that the furnace of the plaintiff broke down through an 'unavoidable accident,' and the plant closed for repairs from about August 1 to November 19, 1902, and that for this reason the plaintiff was excused from carrying out its agreement, if valid, during that time, and that there was an universal custom among manufacturers of steel castings, well known to defendant, that all contracts were subject to the contingency of strikes, accidents and unavoidable delays, and that this contract was entered into with reference to this custom third, that notice was given the defendant that the furnace of the plaintiff would resume operation about November 19th but defendant did not furnish plaintiff with patterns by which it might have supplied defendant's November and December requirements.

Action upon account for goods sold and delivered, and cross-action for damages for breach of contract. Jury waived. The trial judge made a finding of facts and a general finding for the plaintiff for the full amount of the account and against the defendant upon its cross-petition.

On April 10, 1902, the National Steel Castings Company made in writing the following proposition to the Lima Locomotive & Machine Company: 'Gentlemen: We make the following proposition for furnishing all your requirements in steel castings for the remainder of the present year at the prices mentioned below, f.o.b. cars at Montpelier, the terms to be thirty days net. You agree to furnish us on or before the 15th of each month the tonnage that you wish to order during the following month. We agree to fill your orders as specified to the amount of this tonnage, and to make such deliveries as you require. ' Then followed a schedule of steel castings and prices per pound. This was accepted in writing by indorsing thereon, at the foot of the proposition, 'Accepted April 10, 1902,' and duly signed by the Lima Company. This contract the defendant set out in its cross-petition and averred: First, that the castings for which the plaintiff had sued were ordered and supplied under this contract; second, that the plaintiff had failed and refused, though requested, to supply it with other castings necessary to meet the requirements of its business, and that defendant in consequence had been obliged to contract for same with other founders and had paid for the castings so procured $5,498.24 over and above the contract price with plaintiff.

The defenses to the cross-petition were: First, that the contract was void for want of mutuality; second, that the furnace of the plaintiff broke down through an 'unavoidable accident,' and the plant closed for repairs from about August 1 to November 19, 1902, and that for this reason the plaintiff was excused from carrying out its agreement, if valid, during that time, and that there was an universal custom among manufacturers of steel castings, well known to defendant, that all contracts were subject to the contingency of strikes, accidents and unavoidable delays, and that this contract was entered into with reference to this custom; third, that notice was given the defendant that the furnace of the plaintiff would resume operation about November 19th, but defendant did not furnish plaintiff with patterns by which it might have supplied defendant's November and December requirements.

Action upon account for goods sold and delivered, and cross-action for damages for breach of contract. Jury waived. The trial judge made a finding of facts and a general finding for the plaintiff for the full amount of the account and against the defendant upon its cross-petition.

On April 10, 1902, the National Steel Castings Company made in writing the following proposition to the Lima Locomotive & Machine Company: 'Gentlemen: We make the following proposition for furnishing all your requirements in steel castings for the remainder of the present year at the prices mentioned below, f.o.b. cars at Montpelier, the terms to be thirty days net. You agree to furnish us on or before the 15th of each month the tonnage that you wish to order during the following month. We agree to fill your orders as specified to the amount of this tonnage, and to make such deliveries as you require. ' Then followed a schedule of steel castings and prices per pound. This was accepted in writing by indorsing thereon, at the foot of the proposition, 'Accepted April 10, 1902,' and duly signed by the Lima Company. This contract the defendant set out in its cross-petition and averred: First, that the castings for which the plaintiff had sued were ordered and supplied under this contract; second, that the plaintiff had failed and refused, though requested, to supply it with other castings necessary to meet the requirements of its business, and that defendant in consequence had been obliged to contract for same with other founders and had paid for the castings so procured $5,498.24 over and above the contract price with plaintiff.

The defenses to the cross-petition were: First, that the contract was void for want of mutuality; second, that the furnace of the plaintiff broke down through an 'unavoidable accident,' and the plant closed for repairs from about August 1 to November 19, 1902, and that for this reason the plaintiff was excused from carrying out its agreement, if valid, during that time, and that there was an universal custom among manufacturers of steel castings, well known to defendant, that all contracts were subject to the contingency of strikes, accidents and unavoidable delays, and that this contract was entered into with reference to this custom third, that...