Whitcomb v. Shultz

• Decision Date: 03 June 1914
• Docket Number: 206.
• Citation: 215 F. 75
• Parties: WHITCOMB v. SHULTZ.
• Court: U.S. Court of Appeals — Second Circuit

215 F. 75

WHITCOMB v. SHULTZ.

No. 206.

United States Court of Appeals, Second Circuit.

June 3, 1914

J. M Gazzam, of New York City, for plaintiff in error.

A. J Rose, of New York City, for defendant in error.

Before LACOMBE, WARD and ROGERS, Circuit Judges.

WARD Circuit Judge.

The Great American Automatic Vending Machine Company plaintiff's assignor, agreed to manufacture for the Robertson Sales Company 10,000 vending machines like a model submitted. The defendant Whitcomb became surety for the faithful performance of the contract by the Sales Company. By January 1, 1910, the Vending Company had delivered 2,100 machines, after which date the Sales Company refused to receive any more. Thereupon the plaintiff brought this action at law against the defendant as surety, to recover the damages sustained by the Vending Company, being first, the balance due and unpaid upon the 2,100 machines delivered with interest at 6 per cent; second, the cost of materials purchased for the manufacture of the 10,000 machines, less what was used in the 2,100 delivered; third, the profits on the 7,900 machines remaining to be delivered. The jury returned a verdict for the plaintiff. This is a writ of error to a judgment entered thereon.

Many errors are assigned because of Judge Mack's refusal to charge as requested, but we think that his charge was full, careful and impartial and properly covered the requests.

The defendant relies greatly on the proposition that the plaintiff did not manufacture the machines because it employed other parties to make many of the parts and therefore has no cause of action. The court rightly charged the jury that the plaintiff's assignor was not obliged itself to manufacture all the parts. There was evidence that the model submitted was manufactured in the same way and that the officers of the Sales Company knew before they repudiated the contract that the Vending Company was itself making only some parts of the machine, employing third parties to make other parts.

The material question was whether the Vending Company manufactured machines substantially like the model. If it did, it performed its contract. It was not responsible for the operation of the machines. This question was fully and fairly presented to the jury, who decided it in the plaintiff's favor upon a conflict of testimony and this finding is binding upon us.

The defendant also contends that the plaintiff failed...