Skopes Rubber Corp. v. United States Rubber Co.

• Decision Date: 27 February 1962
• Docket Number: No. 5860.,5860.
• Citation: 299 F.2d 584
• Parties: SKOPES RUBBER CORP., Plaintiff, Appellant, v. UNITED STATES RUBBER COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

299 F.2d 584 (1962)

SKOPES RUBBER CORP., Plaintiff, Appellant, v. UNITED STATES RUBBER COMPANY, Defendant, Appellee.

No. 5860.

United States Court of Appeals First Circuit.

February 27, 1962.

Jerome Medalie, Boston, Mass., with whom Irving Fishman and Cohn, Riemer & Pollack, Boston, Mass., were on brief, for appellant.

Blair L. Perry, Boston, Mass., with whom Edmund Burke, Boston, Mass., Myron Kalish, New York City, Hale & Dorr, Boston, Mass., and Arthur, Dry, & Dole, New York City, were on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of Massachusetts granting the defendant-appellee's motion for a directed verdict on two counts¹ of plaintiff-appellant's complaint which alleged a breach of contract and a breach of warranty by sample arising out of the sale of certain material which was to be used in the making of skin-diving suits.

It is the plaintiff's theory that, out of a series of correspondence and personal conferences, there arose an agreement with the defendant under which the latter agreed to furnish certain material to the plaintiff to be utilized in the production of skin-diving suits. This material, according to plaintiff, was to contain specific and definite qualities and was to conform to a specific sample which had been previously furnished to the plaintiff during the course of the negotiations and which, again under plaintiff's view, had been made a part of the contract. Defendant denies that it entered into any binding contract with plaintiff. Alternately it argues that any agreement into which it might have entered merely looked towards the development of a new product whose successful production was so speculative that the failure to achieve the hoped for result could not give rise to legal liability. Further, it argues that even assuming the existence of an agreement, there was no evidence of a warranty that goods furnished incident thereto should conform to a specific sample. Finally, it contends that any agreement which may have existed was rescinded by mutual consent.

The facts in this case are largely undisputed. It appears that in 1958 the only "wet"² suit material on the market was a product made of black neoprene sponge rubber. Dissatisfied with this material because the black color made underwater visibility unsatisfactory, three devotees of the skin-diving sport considered the prospects of obtaining an alternative material. These individuals, later to become associated in the plaintiff corporation which was organized on August 28, 1958, were Melvin Bardin, Tom Skope and Fred Elashoff.

On May 30, 1958 Bardin wrote to the defendant, inquiring as to whether it had available any white material containing certain enumerated properties which might be used for skin-diving purposes. A reply dated June 16, 1958 introduced Bardin to U. S. Rubber Company's Ensolite.

Ensolite, which had been sold commercially by the defendant since 1949, was a lightweight, closed cell material somewhat similar to foam rubber in appearance and texture. It had been used for athletic padding, wrestling mats, boat seats, life jackets and aviation applications. In its reply to Bardin's initial inquiry, defendant stated that Ensolite possessed "* * * excellent shock absorbent, sound deadening, thermal insulating and flotation properties." Defendant enclosed a sample of Type M Ensolite and noted that the material "* * * might prove satisfactory for your intended use." Other correspondence was exchanged. On June 20 defendant wrote to Bardin with further information concerning Ensolite, enclosing a price list and specifications sheet. Thereafter, defendant supplied Bardin with thirty-five square feet of Type M Ensolite and stated that "We would appreciate very much hearing from you on the results obtained from using Ensolite in a skin diving suit."

After making up and testing a trial suit, on July 21, 1958, Bardin wrote to the defendant that "although there is no definite result yet, * * * with some minor changes I think we will have something." After noting that more tests would follow, Bardin stated: "One thing is certain. The skin on the Ensolite is too easy to rip. We believe that it is because it is not smooth. It catches very easily on equipment, shells, rock and barnacles. Most certainly it would rip on coral. The skin you used had a grain effect. I am enclosing another strip of neoprene so you can see what I mean by a smooth surface." The letter then concluded: "Please let me know whether you can match the smooth skin."

In reply, on July 25, 1958, the defendant wrote as follows: "U. S. Ensolite can be vinyl coated to provide better abrasive wear and give additional tensile strength. We are enclosing a 1" thick sample of Type M Ensolite which has been vinyl coated with the color Red. * * * As you can see by this sample, the vinyl coating has dissipated the grain effect of the Ensolite, and has given it a smooth effect." This reply also noted that vinyl is not applied at the factory but is sold to the customer for his own application.

After the letter of July 25, the defendant sent Bardin a sheet of green Ensolite. Although this sheet had apparently not been coated with the vinyl (viz., sample enclosed in above letter of July 25), a suit was made from this and tested. At the trial Bardin testified that this suit though warm, buoyant, stretchable and highly visible under water, "* * * still had the same type of skinning that we had in the original thin suit. Actually, we didn't think it was hard enough on the outside for our purposes for abrasion resistance. Everything else in the suit was fine."

On August 19, 1958 Bardin, Skope and Elashoff met in Philadelphia with Joseph Pert, sales manager of the defendant's Ensolite Products Division, and Ronald Tuohey, a sales representative of the United States Rubber Company. A skindiving suit which was recently made from the green uncoated Ensolite was displayed to Pert and Tuohey and the quality of Ensolite as applied to skin diving was discussed. Bardin then testified:

"At this particular time, I pointed out to Mr. Pert and Mr. Tuohey the outer skin on it, * * * and asked them if there was something they could do to make it more abrasive-resistant. * * *

"Q. Did they say they could do anything with that suit to make it more abrasive-resistant? A. Yes, they did.

"Q. Who was it that said so? A. Mr. Pert * * * told me that they could put on a vinyl, a liquid vinyl coating on the material, which would give it substantially more strength, make it more resistant to abrasion and give it a better tensile strength, and just in general improve that particular thing that we were questioning."

Bardin also testified: "At the conference Mr. Pert told us that they had plenty of experience vinyl-coating ensolite such as wrestling mats, et cetera, which take a terrific amount of punishment, and that he would recommend that we take a sheet of material with vinyl covering on it, make a suit out of it and try it out."

Bardin then informed Pert and Tuohey of their plans for world-wide distribution of the material if it could be satisfactorily produced. Testifying as to this conference at the trial, Pert confirmed the fact that Bardin had complained to him that the surface of the Ensolite was too tender and that something should be done to improve abrasion resistance. Pert told Bardin of the success which various sporting goods manufacturers had achieved in increasing the abrasion resistance of Ensolite by coating it with liquid vinyl. He stated that while the company had not previously coated Ensolite on a production basis for its customers, "* * * I further told him, or suggested, that we would be most happy to coat some sheets by hand, and submit them to them for further testing."

Following this conference, on August 28, 1958, defendant forwarded to Bardin and his associates nine sheets of white Ensolite which had been coated with vinyl. This material, like the sample furnished on July 25, was smooth-surfaced. Nine suits were immediately made from this material and became the subject of extensive testing.

With one modification (to be later discussed) this material proved to be eminently satisfactory for skin-diving purposes. Indicative of the favorable qualities of these suits was the following testimony of Elashoff at the trial:

"Q. Can you tell the Court and jury what characteristics with reference to the skin-diving itself you observed in this suit as a result of your first swim with it? A. Well, it was light, I mean light in weight, easy to put on, it stretched; it give (sic) a diver an extreme amount of confidence because it was so buoyant; the safety factor was mentally very satisfactory.

"There was ease of swimming. Arms and legs were free. The suit was simple to take off, you didn\'t have to use any powder to put it on."

Bardin testified that he swam the suit at least fifty times during the entire fall and winter of 1958-1959 in water ranging from 50° F down to 28° F. A suit made from this material was tested by James Cahill, a professional diver who testified that he "was very much impressed by it." Cahill thereafter communicated with the Finjohn Company of Philadelphia, which company he represented, and arranged for Bardin and his associates to confer with Finjohn on the possibility of marketing the material. The evidence further disclosed that in November 1958 a certain Francois Vilarem, president of U. S. Divers Co., one of the country's leading distributors of skin-diving equipment, tested a suit made out of the sample white material and thereafter personally confirmed an order by his company of 5,000 sheets of Ensolite from the plaintiff.

On September 12, 1958 Bardin wrote to Pert that the material previously sent "is proving to be very good. We have decided to go ahead with this combination...