Peterson Steels v. Seidmon
| Decision Date | 20 April 1951 |
| Docket Number | No. 10242.,10242. |
| Parties | PETERSON STEELS, Inc. v. SEIDMON. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Roscoe C. Nash, Spencer Le Roy, Jr., Chicago, Ill., for appellant.
Joseph Z. Willner, Chicago, Ill., for appellees.
Before DUFFY, LINDLEY and SWAIM, Circuit Judges.
This action was brought to recover damages for breach of a contract for the sale by plaintiff and the purchase by defendants of 30,000 pounds of steel rods fabricated according to defendants' specifications. The district court sustained the defendants' motion to dismiss the complaint, considering the contract sued on unenforceable under Sec. 4 of the Uniform Sales Act of Illinois (Statute of Frauds.)1 Plaintiff thereafter filed a motion for leave to file an amended complaint, and presented the proposed amended complaint therewith. The district court denied plaintiff's motion, saying that the proposed complaint was essentially the same as the one originally filed.
On November 22, 1948, defendants signed a written purchase order for 30,000 pounds of steel rods of a certain specification. Included in the order was the provision, "Shipping Date — Soon as pos." At the bottom of the order appeared, "Delivery 8 to 10 weeks." Plaintiff accepted the order on the following day. This written order and the acceptance thereof is the contract sued upon in this action.
Some suggestion was made during oral argument that the order here in question is not appealable. Considering that the original complaint had been dismissed, the order denying plaintiff the right to file an amended complaint was intended to and did terminate the litigation in the district court. We think it is an appealable order. Asher v. Ruppa, 7 Cir., 173 F.2d 10, 11.
Rule 15(a), Federal Rules of Civil Procedure, 28 U.S.C.A., provides: "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served * * *."
As defendants had not served a responsive pleading, plaintiff was entitled to file his amended complaint as a matter of course and was not required to ask leave of court; it was error, however, to deny such leave when the request was made. Rogers v. Girard Trust Co., 6 Cir., 159 F.2d 239, 241.
It would avail nothing to base our decision on the point that irrespective of its allegations plaintiff was entitled to file the proposed amended complaint, because undoubtedly the district court on motion would dismiss the amended complaint on the ground that it did not state a claim upon which relief could be granted, and more particularly that the contract sued on was unenforceable under the Statute of Frauds.
As a general rule the court will not pass upon the sufficiency of an amended complaint upon motion for leave to file. Fischer v. Karl, D.C.N.Y., 6 F.R.D. 268; Rupe v. Associated Electric Co., D.C.Del., 6 F.R.D. 309; Rucienski v. Vanadium Corp. of America, D.C.N.Y., 6 F.R.D. 313. However, it is a matter within the court's discretion to consider and pass upon the sufficiency of an amended pleading on motion for leave to file. Stephens v. Reed, 3 Cir., 121 F.2d 696, 699.
No motion to dismiss the amended complaint was made. The court on its own initiative passed on its legal sufficiency. However, the issue presented is essentially the same as though such a motion had been made, and on this appeal we must accept as true the facts alleged in the amended complaint. Ohio Casualty Ins. Co. v. Farmers Bank of Clay, Kentucky, 6 Cir., 178 F.2d 570.
The proposed amended complaint must be viewed in the light most favorable to the plaintiff; it should not be dismissed unless it appears to a certainty that plaintiff would not be entitled to any relief under any state of facts which could be proved in support of its claims. No matter how likely it may seem that a plaintiff may be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to prove it. Kirke v. Texas Co., 7 Cir., 186 F.2d 643, 647; Chicago & N. W. R. Co. v. Chicago Packaged Fuel Co., 7 Cir., 183 F.2d 630; Asher v. Ruppa, supra, 173 F.2d at page 12; Carroll v. Morrison Hotel Corp., 7 Cir., 149 F.2d 404, 406.
The district court interpreted the contract to provide that the steel to be fabricated was to be delivered within 8 to 10 weeks of the date of the order, and that any later oral agreement which varied such delivery date was void under the Statute of Frauds. It was admitted that delivery of the fabricated steel was not actually tendered until April 1, 1949.
The amended complaint alleged that the steel called for in defendants' purchase order was not carried in stock by plaintiff or other dealers in steel, and had to be especially fabricated by a steel mill; that on November...
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