Victor Products Corp. v. Yates-American Mach. Co.

• Decision Date: 12 January 1932
• Docket Number: No. 3191.,3191.
• Citation: 54 F.2d 1062
• Parties: VICTOR PRODUCTS CORPORATION v. YATES-AMERICAN MACH. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

54 F.2d 1062 (1932)

VICTOR PRODUCTS CORPORATION v. YATES-AMERICAN MACH. CO.

No. 3191.

Circuit Court of Appeals, Fourth Circuit.

January 12, 1932.

E. Dulaney Ott, of Harrisonburg, Va., and T. Russell Cather, of Winchester, Va., for appellant.

Leslie C. Garnett, of Washington, D. C., and John Paul, of Harrisonburg, Va. (Carlin & Carlin, of Alexandria, Va., on the brief), for appellee.

Before NORTHCOTT and SOPER, Circuit Judges, and McCLINTIC, District Judge.

NORTHCOTT, Circuit Judge.

This is an action at law brought in May, 1930, in the United States District Court for the Western district of Virginia, at Harrisonburg, Va., whereby the Yates-American Machine Company, a Delaware company having its principal office in the city of Beloit, Wis., the appellee, brought an action in assumpsit to recover from the Victor Products Corporation, the appellant, $5,189 and interest, on a certain contract in writing with the Acorn Manufacturing Corporation, a corporation organized under the laws of Virginia, and having its principal office at Winchester, Va.

On the trial in October, 1930, the judge below directed a verdict in favor of the plaintiff for the amount sued for with interest, and entered judgment for the same, from which action this appeal was brought.

In December, 1922, the appellee entered into a written contract with the Acorn Company to sell that company certain wood-working machinery. The plaintiff company was not the manufacturer of the machines sold, but was sales agent for the L. G. McKnight & Son Company, a Massachusetts company, the manufacturer.

The pertinent part of the contract reads as follows:

"It is agreed that title to the property mentioned herein, and all subsequent additions thereto, shall remain in Yates-American Machine Company until fully paid for in cash; that in case of rejection of the property forwarded, or failure to pay as stated herein, undersigned (the purchaser) shall at once return and deliver the property in good order to consignor F. O. B. Cars, at point of origin; that a retention of the property forwarded after thirty days from the date of arrival shall constitute an acceptance, be a conclusive admission of the truth of all the representations made by or for the consignor, and void all its contracts of warranty, express or implied. It is also agreed that in case of failure to pay any installments herein provided, the whole unpaid balance shall at once become due and payable, and consignor or its agents shall have the right, with or without legal process, to retake possession of the said property and, at its option, either retain it, (all payments made theretofore to be forfeited as compensation for its use as liquidated damages) or sell it at public auction or private sale; that the entire expense, and in case of suit all taxable costs, of such retake, return to point of origin and resale and the deficiency, if any there be after net proceeds are applied, shall at once be paid by the purchaser.

"It is agreed that this contract is not modified or added to by any agreement not expressly stated herein; that this contract shall not hereafter be changed or modified in any respect unless a written memorandum embodying such changes or modifications, duly stated, signed by both parties hereto, and bearing distinct date reference to this contract be attached to and made part of this agreement."

The machines were duly shipped and received by the Acorn Company on February 13, 1928, and were installed and put in operation during the ensuing week or ten days. The Acorn Company made no complaint as to the working of the machines to the plaintiff until May 1, 1928, after the thirty-day period mentioned in the contract had expired. The officials of the Acorn Company claimed to have made some complaint in March, 1928, to the McKnight Company, the manufacturer.

Upon demand being made by the plaintiff for the purchase price, the Acorn Company refused to pay, alleging that the machines had never worked in a satisfactory manner, and claimed damages for their defective operation.

Later, the appellant company was organized for the purpose of consolidating several companies, among them the Acorn Company, the purchaser of the machines.

Where such merger or consolidation has taken place, it is provided under section 3823 Code of Virginia that: "All debts, liabilities, and duties of either of said companies shall thenceforth attach to said new corporation and be enforced against it to the same extent as if the said debts, liabilities, and duties had been incurred or contracted by it."

In addition, the Victor Products Company took over all the assets of the Acorn Company, and expressly agreed to assume all the liabilities of that company.

The trial judge refused to permit the introduction of any evidence,...