Service Conveyor Co. v. Shatterproof Glass Corp.
| Decision Date | 17 February 1955 |
| Docket Number | No. 12104.,12104. |
| Citation | 219 F.2d 583 |
| Parties | SERVICE CONVEYOR COMPANY, a Michigan Corporation, Appellant, v. SHATTERPROOF GLASS CORPORATION, a Delaware Corporation, Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John S. Slavens and Wayne A. Anderson, Detroit, Mich. (Francis W. McCauley, Detroit, Mich., on the brief), for appellant.
Fred R. Walker, Detroit, Mich., (Peter L. LaDuke, Detroit, Mich., on the brief), for appellee.
Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges.
This is an appeal from a judgment rendered on a jury verdict in favor of defendant,1 after trial of an action for the purchase price of a conveyor system manufactured and installed by plaintiff, a Michigan corporation, in the plant of defendant, a Delaware corporation engaged in the city of Detroit in the manufacture of replacement automobile glass. The facts are stipulated and are in substance as follows:
Plaintiff on May 31, 1950, submitted to defendant a proposal to design, manufacture and install conveyor systems suitable for carrying glass of various sizes from one building to another in defendant's plant and thence to a washing machine where the glass was washed. The terms of payment specified in plaintiff's proposal were as follows:
After an amendment of the proposal immaterial here, defendant on August 3, 1950, sent a purchase order which stated, among other things:
This proposal was accepted in writing by plaintiff on August 7, 1950. The conveyor system was designed, fabricated, and installed in defendant's plant, the installation being begun in the early part of January, 1951. The system was placed in operation about the end of January, 1951.
Four invoices for the aggregate amount of $6,654 were rendered to defendant, mailed January 12, 1951, January 31, 1951, March 29, 1951, and April 27, 1951, respectively, the last invoice in the agreed amount of $168 for overtime. No part of the sums represented in the invoices has been paid except the small amount for overtime.
Defendant claimed that the equipment did not perform satisfactorily, was not suitable for the purpose for which it was intended, and that the conditions set forth in the purchase order therefor had not been complied with. At the trial plaintiff conceded that the plant engineer had not approved the installation. In a letter dated April 11, 1951, defendant stated that the system had failed to function in a satisfactory manner "on several points" and called upon plaintiff to obtain satisfactory performance of the installation at the earliest possible date. Efforts to remedy the claimed defects in performance were made by plaintiff but were not satisfactory to defendant. In a letter dated June 6, 1951, defendant stated that it had suffered a considerable loss of production efficiency due to breakdown of equipment, excessive breakage of glass, and maintenance expense. The main source of the difficulty, defendant declared, was two horizontal turns consisting of two 90° curve sections, the inherent design of which defendant said prevented any practical, effective solution by alteration and required replacement with suitable equipment. In this letter defendant demanded that plaintiff immediately proceed to have the turns replaced with new ones of a design and workmanship to fully meet the requirements of the original agreement. Plaintiff replied that it would make no further effort to make the system operate until defendant had paid plaintiff's invoices in accordance with the contract. Alterations were proposed, but plaintiff refused to make them until defendant paid the invoices. Such payment not being made, plaintiff instituted suit September 5, 1951. Defendant used the conveyor system as installed by plaintiff, without alteration, until December 5, 1951, when it replaced the two curve sections in the conveyor system without plaintiff's knowledge or consent and continued to use the altered conveyor system to the date of trial in September, 1953. During the trial plaintiff conceded that the two curve sections did not operate to defendant's satisfaction. The court submitted the case to the jury on the sole question as to whether or not defendant had accepted the conveyor system. The jury returned a verdict for defendant and judgment of no cause of action was entered thereon.
The sole question presented, raised by motion for directed verdict, is whether defendant's use of the conveyor system in its production from June 6, 1951, until the institution of suit in September, 1951, and its continued use thereafter to the date of trial in September, 1953, together with the replacement of the curve sections on December 5, 1951, without plaintiff's knowledge or consent, as a matter of law constituted acceptance of the conveyor system.
Since the contract was executed and performed in Michigan the rights of the parties are governed by the Uniform Sales Act, which is part of the substantive law of Michigan. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Cox-James Co. v. Haskelite Manufacturing Corp., 255 Mich. 192, 237 N.W. 548. Under the Uniform Sales Act, M.S.A. Section 19.303, where, under a contract to sell, the property in the goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods. Section 69(1), M.S.A. § 19.309, Comp.Laws 1948, § 440.69(1), which covers the remedies of a buyer for breach of warranty, reads as follows:
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...the Uniform Sales Act, are not persuasive here: Burge Ice Machine Company v. Weiss, 6 Cir., 219 F.2d 573; Service Conveyor Co. v. Shatterproof Glass Corp., 6 Cir., 219 F.2d 583; Wiseman v. Gillioz, 192 Ark. 950, 96 S.W.2d 456; Carver v. Denn, 117 Utah 180, 214 P.2d 118. The two federal case......
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Poole v. Functional Construction Co.
...of sale in Carver v. Denn, 117 Utah 180, 214 P.2d 118; Burge Ice Machine Co. v. Weiss, 6 Cir., 219 F.2d 573; Service Conveyor Co. v. Shatterproof Glass Corp., 6 Cir., 219 F.2d 583; and Wiseman v. Gillioz, 192 Ark. 950, 96 S.W.2d 459. Appellant attempts to distinguish these cases on the grou......