Smith Contracting Corp. v. Trojan Const. Co.
| Decision Date | 22 October 1951 |
| Docket Number | No. 4246.,4246. |
| Citation | 192 F.2d 234 |
| Parties | SMITH CONTRACTING CORP. v. TROJAN CONST. CO., Inc. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert J. Woolsey, Tulsa, Okl., (W. E. Green and J. C. Farmer, Tulsa, Okl., on the brief), for appellant.
John F. Butler, Oklahoma City, Okl., (Butler, Rinehart & Morrison, Oklahoma City, Okl., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
The Trojan Construction Company, Inc.,1 brought this action against Smith Contracting Corporation2 to recover damages, in excess of normal wear and tear, to equipment leased by Trojan to Smith, occurring during the use of the equipment by Smith.
The leases were in writing and the two provisions thereof, here material, in each lease, read as follows:
A pretrial conference was held and the parties agreed that the action was predicated upon a claim that Smith returned the equipment in a damaged condition not resulting from normal wear and tear; that Smith denied there was any damage other than that resulting from normal wear and tear; and that the only question for determination was such issue of fact.
During the introduction of the testimony of the first witness of Trojan the leases were introduced in evidence. Smith then sought to prove that it paid rental for a full month at the end of the rental period, and that the equipment was returned before the end of the last monthly rental period; asserted that it was entitled to a counterclaim under the provisions of paragraph 2(a) of the leases; and asked leave to amend its answer to conform to such proof. The trial court ruled that Smith might make the proof and that it would take under advisement the question of whether the amendment would be permitted.
The trial court found that the equipment suffered damages, resulting other than from ordinary wear and tear during its use by Smith, aggregating $5,208.50. That finding is supported by substantial evidence, is not clearly erroneous, and is, therefore, binding on this court.
Trojan introduced proof that it verbally notified Craig, Superintendent of Smith, in charge of the work where the equipment was being used, of the damages to the equipment shortly before it was returned and that Craig agreed to have the equipment repaired. It will be observed that the leases did not require notice in writing or other formality in the giving of the notice. They merely provided that any damage claim should be made known to the other party within seven days after receipt of the equipment. The trial court ruled that the verbal notice to Craig was sufficient notice of the...
To continue reading
Request your trial
-
T. J. Stevenson & Co., Inc. v. 81,193 Bags of Flour
...Trust Co. National Assoc. v. Inland Marine Products Corp., 542 F.2d 1010, 1012 n.5 (8th Cir. 1976); Smith Contracting Corp. v. Trojan Construction Co., 192 F.2d 234 (10th Cir. 1951); 6 C. Wright & A. Miller, supra, § 1479, at 403 (1971) ("thus little seems to turn on whether the amendment i......
-
Randolph v. Franklin Inv. Co., Inc.
...Trust Co. National Ass'n. v. Inland Marine Products Corp., 542 F.2d 1010, 1012 n. 5 (8th Cir. 1976); see Smith Contracting Corp. v. Trojan Const. Co., 192 F.2d 234 (10th Cir. 1951); Rosenwald v. Vornado, Inc., 70 F.R.D. 376 (E.D. Pa.1976); Wright & Miller, 6 Fed.Prac. and Proc.: Civil § 147......
-
United States v. Frank
..."is an independent ground upon which the court may grant leave to set up the counterclaim by amendment." Smith Contracting Corp. v. Trojan Constr. Co., 192 F.2d 234, 236 (10th Cir.1951). Defendant's position is that granting the amendment will not prejudice the government while failure to p......
-
Ziegler v. Akin
...Oil & Gas Co., 10 Cir., 226 F. 2d 156; Chicago Pneumatic Tool Co. v. Hughes Tool Co., 10 Cir., 192 F.2d 620; Smith Contracting Corp. v. Trojan Const. Co., 10 Cir., 192 F.2d 234; Gillette Motor Transport, Inc., v. Northern Oklahoma Butane Co., 10 Cir., 179 F.2d 711. See also Baltimore Americ......