Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is an appeal by the defendant from a judgment for the plaintiff entered upon the verdict of a jury. The action is to recover damages for the breach of a contract by the defendant.
The defendant was awarded a contract for the construction of the United States Assay Office at Old Slip in the city of New York.
On September 3, 1930, the defendant sent a postal card to the plaintiff inviting it to bid for the fabrication and erection of the structural steel in the Assay building. Thereupon the plaintiff prepared a bid of $139,600 and transmitted it to the defendant at its Chicago office by mail. On October 7, 1930, the defendant wrote the plaintiff that its secretary, Pursell, would be in New York on October 9, and asked the plaintiff to get in touch with him in reference to the structural steel for the Assay building. Plaintiff's vice president, Mullen, called on Pursell at his hotel and discussed the bid that had been submitted, which Pursell said was too high. Mullen also met him again on October 10 and there was another discussion of a reduction of the price for the fabrication and erection of the structural steel, but without any agreement. On October 11 there was a further discussion in which Mullen suggested the exclusion of the vault steel and the steel for entrance door partition which had been included in the original bid and offered to agree upon "a price of $108,000 for the contract." The bid was written on a form headed: "Standard Proposal contract (adopted 1929 by the Structural Steel Board of Trade Inc.)." The clauses relating to the vault steel and the steel material for the entrance door partition were marked "out" in the margin, and at the head of the proposal which had been signed on behalf of the plaintiff by its vice president, Mullen, was written the following:
"Contract subject to Board of Trade Form" and also the following:
"10/11/30 Revised Proposal All structural steel erected exclusive of Vault steel as per P 2 & 3 below for the sum of 108,000.00
"Accepted Great Lakes Const. Co. J. R. Pursell."
A counterpart of the foregoing revised proposal was also subscribed:
"Accepted. Subject to St. Steel Board of Trade Contract -- Lehigh St. Steel Co. T. R. Mullen, V.P."
The revised proposal accepted by Great Lakes Construction Company was retained by Mullen, and the counterpart accepted by Lehigh Structural Steel Company was retained by Pursell.
On October 14, 1930, the defendant telegraphed the plaintiff from Chicago asking whether the formal structural board of trade contracts had been mailed, and on October 15 the plaintiff telegraphed that they had been mailed, and, on the same date, mailed such contracts in triplicate in a letter requesting the defendant to sign and return two copies to it at its office in Allentown, Pa. On October 20, 1930, Mullen telephoned Pursell requesting the contracts he had forwarded. The latter replied that the defendant was threatened with labor trouble, but he expected the matter would be cleaned up that day and would send on the contracts. On October 29, Mullen called on Pursell and was told that labor trouble was threatened if the plaintiff did the work, so that the contract had been given to Bethlehem Fabricators, Inc.
Both the form on which was written "Accepted" and the structural steel board of trade form contained a clause that the plaintiff should have the right to select its employees "irrespective of their ...