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LIBERTY PRODS. CORP. v. H. K. FERGUSON CO.

February 6, 1950

LIBERTY PRODUCTS CORPORATION
v.
H. K. FERGUSON CO.



The opinion of the court was delivered by: BYERS

This is a plaintiff's motion to strike the first and second defenses pleaded in the answer to a complaint which alleges breach of a written contract and resultant damages.

The contract is dated November 10, 1947, and was modified by written agreement dated May 20, 1948, whereby the completion date was extended from 25 weeks from the starting date as originally provided, to August 1, 1948.

The parties to the instruments are the above-named, and the documents are Exhibits A. and B. attached to the complaint. As a caption to the first, there appears the following:

 'Prime Contract AT-30-2-Gen-16

 A-E-M Contract No. S-26

 Subcontract No. PRO 2 (S-26-34)'

 The recitals are that the defendant is called the 'Contractor' and the plaintiff the 'Subcontractor'. That the former has contracted with the Associated Universities, Inc., Upton, Long Island, called the Universities, under a 'prime contract' dated September 15, 1947, to perform certain of the work set forth in another contract between the Universities and the United States of America, to be called the 'Government', represented by the United States Atomic Energy Commission, which is that referred to in the first line of the Caption.

 That the Contractor desires that the Subcontractor perform 'a certain specialized machining operation on materials to be used in such work; and Whereas, in the interest of security it is necessary to perform this work at the Brookhaven National Laboratories', called the site;

 The services are the supply of personnel, equipment and materials as specified 'for the machining of all of the rectilinear graphite bar stock presently located' at the site 'which may be required by the Contractor under the prime contract'.

 Provisions appropriate to the methods of performance then follow; also the date when it shall commence and be completed.

 The estimated total cost for completion is set forth with a schedule of hourly rates to be paid for various jobs, and matters incident to labor relations, written authority for overtime; invoices and their contents, grinding charges, equipment, records, etc., and other details which it is not necessary to enumerate.

 The paragraph important to this motion is:

 '9. DISPUTES

 'Except as otherwise specifically provided in this subcontract, all disputes which may arise under this subcontract, and which are not disposed of by mutual agreement, shall be decided by a representative of the Commission duly authorized to supervise and administer performance of the work hereunder, who shall reduce his decision to writing and mail a copy of such decision to the parties hereto at their addresses shown herein, such written decision there (sic) shall be final and conclusive. Pending ...


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