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November 20, 1950


The opinion of the court was delivered by: BYERS

The plaintiff seeks judgment for the unpaid balance of $ 3,139.00, its charges for building and delivering a candy-cutting machine to the defendant. The latter asserts a counterclaim for breach of implied warranty of fitness in the amount paid on account ($ 5,683.00), and by amendment at the trial, the Statute of Frauds as a defense. By similar action, the answer was amended to deny acceptance of the machine which was alleged in the complaint.

There are no conflicting versions of fact to be resolved, since the testimony is undisputed as to all matters essential to decision; thus itemized findings are not required.

Jurisdiction of the cause and the parties rests upon diversity of citizenship, and the amount in controversy. The plaintiff is a corporation of Pennsylvania having its principal office in Philadelphia, and the defendant is a New York corporation of this District.

 The controversy involves a machine for cutting candy, made by the plaintiff for the defendant as the result of an inquiry by the latter based upon its use of a cutting machine of the plaintiff's make at an earlier day, which the defendant acquired some years ago from some one other than the plaintiff. That was not then a new machine, having been reconditioned for defendant's use, so that nothing can be predicated of it, for present purposes, save that it served as a directory to the plaintiff's plant.

 In October of 1946, the defendant first employed one Hutchinson as plant superintendent, whose idea it was that a cutting machine could be built employing a continuous cutter called a guillotine knife, which should move in step with the belt carrying the candy, and cut the latter without loss of motion during the operation of the conveyor belt. He said he had seen such a machine in operation in Chicago, and explained his ideas to a Mr. Day, then the engineer in charge of operations of the plaintiff's plant. Thus the present relationship of the parties was initiated.

 The critical issue is whether the plaintiff undertook to provide a machine which would function according to the then stated purposes of the defendant, or whether it accepted from defendant, Hutchinson's theories of design, and undertook to embody them in this machine, without, however, assuming responsibility for the efficacy of his mechanical concepts.

 Direct evidence to support a conclusive answer to the question is less than profuse. It is to be gathered from correspondence, and all that appears from the testimony of Bonomo, president of defendant, and Jontza, its maintenance engineer during the pertinent period, and Monheit, Jr., employed by plaintiff, but called by defendant, all of whom related incidents constituting the unwritten history of the relationship of the parties between October of 1946 and April of 1948 when the dispute may be deemed to have become irreconcilable.

 Hutchinson is no longer in the defendant's employ, but when he ceased to be has not been stated. He did leave an address, also not stated, where Bonomo says he got word at an undisclosed time, that Hutchinson was traveling 'around the country somewhere and they did not know where he was'.

 That is an unconvincing showing that any serious effort was made to procure Hutchinson's testimony; the deduction is permissible that defendant was content to go to trial without calling him as a witness.

 Day, the plaintiff's engineer and formerly in control of its operations, died in 1948, prior to the date of the filing of the answer on September 20, 1948. Monheit, the president, died on the 28th day of that month.

 Under these circumstances, all available testimony was received, much of it over objection, in an effort to gain an understanding of the entire situation which was created with the informality which usually characterizes ordinary business relationships, even though such meeting of the minds as may be deemed to have been established is reflected in a letter from plaintiff to defendant, dated December 6, 1946, which contains the proposal made by the plaintiff (Ex. 1) and defendant's order dated April 15, 1947 (Ex. 6).

 The former is too long to quote, but will be seen to state the proposal 'to supply all material and labor to build a unit consisting of the following parts', namely,

 One 8 ft. conveyor equipped as stated;

 One circular knife cutter equipped ...

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