The opinion of the court was delivered by: DIMOCK
Plaintiff sues to recover damages for delay in delivery of electrical equipment sold and delivered by defendant. Defendant counterclaims for the agreed price of the equipment. Defendant makes this motion for summary judgment dismissing the complaint and granting recovery on the counterclaims.
The delivery of the goods and the amount of the agreed price are conceded so that there is no opposition to the counterclaims.
The suit presents the following questions: (1) at what time did the agreement require delivery; (2) was delivery made within that time: (3) if delivery was not made within the time fixed therefor did an exculpatory clause in the agreement protect the seller against recovery of damages for the delay?
I have come to the conclusion that there exists a question of fact as to whether delivery was made within the time required by the contract. Such a question of fact ought not to be determined on a motion for summary judgment. If such an exculpatory clause were all embracing, however, it would be unnecessary to decide whether delivery was made on time and summary judgment might be directed against the plaintiff on its claim for damages on the strength of the exculpatory clause alone. I have come to the further conclusion that the exculpatory clause in this case is not all embracing and I must, therefore, deny the motion for summary judgment dismissing the plaintiff's claim for damages.
My reasons for these conclusions follow.
In the presentation of the motion most emphasis was laid upon the question whether an alleged oral guarantee fixing the time of delivery was part of the contract between the parties.
The contract was not integrated in a single formal writing. Under date of April 10, 1946, defendant gave the plaintiff its quotation Number 3926 covering four 10-horse power electric motors, four starters for them and four push button stations.
Under the same date the defendant gave the plaintiff its quotation Number 3905 covering two 3-horse power motors, two starters for them, two 5-horse power motors and two starters for them.
Quotation Number 3926 covering the larger motors bore the notation 'Shipping promise after receipt of order at factory' and quotation Number 3905 covering the smaller equipment bore the notation, 'Shipment: 36 weeks'.
Each quotation bore an endorsement stating: 'All orders are subject to the acceptance of our district or branch office serving the purchaser.'
It was after these quotations were made and before any order was given that the oral statement is alleged to have been made. There is testimony that a representative of defendant guaranteed that the material would be delivered between July 25, 1946 and November 8, 1946.
Under date of April 15, 1946, plaintiff ordered from defendant by purchase order Number A-4961 all of the material covered by quotation Number 3926, at the prices which had been quoted, and in addition a reversing starter and push button station which did not appear on the quotation and for which no prices were stated in the order.
Under the same date, plaintiff ordered from defendant by purchase Number A-4963 all of the material covered by the quotation Number 3905, at the prices which had been quoted, and four push button stations which did not appear on the quotation and for which no prices were stated in the order.
Order Number A-4961 for the larger equipment referred to 'Your quotation No. 3926' and order Number A-4963 for the smaller equipment referred to 'Your quotation No. 3905'. Neither fixed any date of delivery and each contained the request: 'Please ...