Schnerb v. Holt Mfg. Co., 200.

• Decision Date: 09 April 1923
• Docket Number: 200.
• Citation: 289 F. 1001
• Parties: SCHNERB et al. v. HOLT MFG. CO.
• Court: U.S. Court of Appeals — Second Circuit

289 F. 1001

SCHNERB et al. v. HOLT MFG. CO.

No. 200.

United States Court of Appeals, Second Circuit.

April 9, 1923

The complaint is at law, setting up three causes of action. The facts alleged common to all three are that defendant makes and made prior to the outbreak of the World War in 1914 various devices embodying the idea of 'caterpillar traction,' and plaintiffs seem to think that defendant's embodiment of this mechanical concept perhaps suggested, and certainly greatly aided, the development of 'tanks.'

In 1912 an apparently authorized official of defendant wrote a letter to plaintiffs (who are Belgians) which plaintiffs accepted as a 'tentative arrangement' or contract. In substance this contract letter is perfectly plain. It contains no ambiguities and confers on plaintiffs the right of 'exclusive representation' until 'more definite conclusions are reached' in respect of the sale of the 'caterpillar traction engines made by defendants' in certain countries, to wit, France, Belgium, Holland, and Scandinavia, and and all Africa, except Tunis. Plaintiffs were to buy what engines and parts they wanted from defendant, and could then sell what they had thus bought, at whatever prices they could procure.

Before this business of selling engines for peaceful purposes had developed further than to induce plaintiffs to buy six engines and certain parts, war broke out, and plaintiffs removed from Belgium to London. It is alleged that during the war the French establishment of Schneider & Co. purchased from defendant, through a London representative, some 17 engines, and that subsequently military representatives of France purchased in the United States and from defendant a much larger number; also that representatives of the British government either in the United States or in England procured from defendant a great number of the same.

The first cause of action (hereinafter called the 'French claim') sets forth the story aforesaid, makes the contract or tentative agreement above referred to a part of the complaint, and asserts that plaintiffs became entitled by reason of the sales to Schneider & Co. to a sum of money which is apparently one-half of the gross amount received from that concern, and further that by reason of 'the agreements existing between plaintiff and defendant the plaintiffs are entitled to receive from defendant by reason of the sale by defendant of tractors in (French) territory' upwards of a million and a half dollars.

The second cause of action (hereinafter called the 'British claim') avers that the plaintiffs were the 'procuring cause' of the sales of engines or tractors made to the British government, and on such sales the complaint demands a reasonable commission, to wit, over half a million dollars.

The remaining cause of action (hereinafter called the 'miscellaneous claim ') again counts on the tentative agreement above referred to and avers that defendant had at divers times received and filled orders for tractors from territory (other than France) exclusively allotted to plaintiffs and demanded judgment for the sum of $1,500 for every machine so sold.

At the close of a somewhat protracted trial the court dismissed the complaint, but did not direct a verdict, whereupon plaintiffs brought this writ,

We shall consider this case substantially as it was argued, but cannot let the practice exhibited in this record pass without comment. What is called a bill of exceptions, comprising with exhibits over 500 printed pages, is no more than the stenographer's minutes; no effort at compression has been made, and almost if not quite one-half of this bulk of print consists of addresses of counsel (to which no exception was taken), and of discussions between court and counsel, which by no stretch of imagination can be called evidence, and which merely obscure the points reserved for our consideration. The attorneys did agree that this should be called a bill of exceptions, but such agreement puts no compulsion upon the trial court to make it one. Consideration of it by this court is of grace. There is prefixed to this so-called bill what is...