Supreme Woodworking Co. v. Zuckerberg
| Decision Date | 30 July 1954 |
| Docket Number | No. 9468,9468 |
| Citation | 82 R.I. 247,107 A.2d 287 |
| Parties | SUPREME WOODWORKING CO., Inc. v. ZUCKERBERG et al. Ex. |
| Court | Rhode Island Supreme Court |
Walter J. Hennessey, Providence, for plaintiff.
Tillinghast, Collins & Tanner, Thomas R. Wickersham, Providence, for defendants.
This is an action of assumpsit to recover a balance alleged to be due under an oral contract for the manufacture of certain 'treadways' or pontoon bridge equipment. After a trial in the superior court a jury returned a general verdict in favor of the plaintiff and also a special finding, and thereafter the trial justice granted the defendants' motion for a new trial on the ground of inconsistent verdicts. The case is now before us on the defendants' exceptions to the admission of certain testimony and to the denial of their motion for a directed verdict.
The plaintiff is a Rhode Island corporation and John Mele, its president and treasurer, represented that company in all negotiations and agreements involved herein. The defendants, Emanuel Zuckerberg, Jerold Zuckerberg and George E. Drazin, at the time were partners doing business as Franklin Mfg. Company. Jerold Zuckerberg, one of the defendants, represented the partnership in all negotiations and agreements concerning the manufacture of the treadways which were the subject matter of the instant action. These articles, which were made of plywood having metal binding and 'fingers' at the end to interlock into one another, were about 12 feet long, 6 inches high, and 3 feet wide, each weighing 350 to 400 pounds. They were used as pontoon equipment in forming bridges or a floor for traction over water or damp ground.
The declaration is in two counts. The first is in special assumpsit and alleges that on April 25, 1951 plaintiff and defendants through their representatives entered into an express oral agreement whereby plaintiff agreed to manufacture in accordance with certain specifications 1873 treadways for delivery by defendants to the United States government; that these were to be billed to defendants at a unit price of $67; and that if plaintiff did not make a reasonable profit at this price defendants would give an additional sum equal to one half of the net profit obtained by them from the sale of each treadway to the United States government. The second count combines the usual common counts in indebitatus assumpsit.
The evidence for plaintiff, so far as it relates to the alleged oral agreement, was presented wholly through its official representative John Mele. He testified in substance and effect that the parties had previous business relations concerning the manufacture of other products; that defendant Zuckerberg invited him to figure on a prospective United States government order for 1873 treadways in accordance with certain specifications; that his estimated cost of $85.64 per treadway was considered too high by Zuckerberg; that on April 25, 1951 the parties finally agreed orally that if plaintiff would manufacture the treadways and bill them to defendants at $67 each, both parties could make a profit out of the order, which defendants seemed to be certain of obtaining; that in any event if plaintiff would agree to manufacture and bill such treadways at the rate of $67 each and it turned out that plaintiff did not make a reasonable profit therefrom, defendants would pay to it one half the net profits realized on the order for that number of treadways which were to be sold to the United States government.
Mele testified further that relying on the above-mentioned oral understanding he signed defendants' written purchase order; that plaintiff performed the contract and billed the treadways at $67 each; that later this unit price was admittedly adjusted to $62.50, he feeling that in any event defendants under the oral agreement would make good any loss; and that plaintiff lost money on the transaction whereas defendants made a large profit from the sale thereof.
On the other hand defendant Zuckerberg denied the alleged oral understanding and agreement and presented a written purchase order admittedly signed by Mele, as the sole contract, subject only to the admitted adjusted price. That instrument, which is in evidence as defendants' exhibit A, reads as follows:
'Purchase Order
Franklin Mfg., Company
530 North Main Street
Providence 4, Rhode Island
To Supreme Woodworking Company
37 Wilson Street
Providence, Rhode Island
Date June 29, 1951
Delivery Date as of June 15, Complete within
Ship Via 90 days
Part No. Quantity Description Unit Total
1873 Treadways Army Engineers Spec. 67.00 ea 124,491.00
All metal parts will be furnished by Franklin Mfg., Company. All Wood parts by Supreme Woodworking Co. Paint by Franklin Mfg., Company. Painting and complete manufacture of treadway to be done by Supreme Woodworking Company. Returns and rejections to be the obligation of Supreme Woodworking Company. Entire units must meet Specifications U. S. Army Engineers.
Franklin Mfg., will assume shipping costs to destination.
Suppliers Acceptance
Signed By:
[signed] John Mele
Issued By:
[signed] Normand J. Boutin
Date
This Order Not Valid Unless Signed And Returned.'
The defendants also presented evidence that the order from the United States government for these treadways was obtained only after competitive bidding; that such bids were not awarded until May 21; and that although plaintiff claimed that the alleged agreement was entered into orally on April 25, 1951, the defendants did not sign the contract with the government concerning the same subject matter until June 2, 1951.
It is evident that without the testimony of Mele concerning such alleged oral agreement, there was no material issue for the jury to determine. However, on the theory of plaintiff's declaration, bill of particulars, evidence and contention, the trial justice over objection by defendants permitted the jury to determine whether the actual agreement of the parties was in accordance with the oral agreement as alleged by plaintiff or with the signed written purchase order and acceptance as claimed by defend...
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