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BROMBERG v. MOUL

December 31, 1957

Maxine P. BROMBERG, Administratrix of the Estate of Jack L. Berg, Deceased, Plaintiff,
v.
Arthur F. MOUL, Defendant



The opinion of the court was delivered by: MORGAN

The above action was brought by the legal representative of the Estate of Jack L. Berg to recover $ 7,623 on account of an alleged sale of three grinders, with interest from April 1, 1952; and the additional sum of $ 1,126.68 on account of expenses incurred in connection with the said sale.

The action was tried before the late Chief Judge of the Western District of New York, the Honorable John Knight, at Buffalo, New York, on March 3rd and March 4th, 1955. Thereafter, this matter was argued, submitted and resubmitted.

 Upon a motion for summary judgment, this Court required a transcript of the testimony of the trial before the late Judge Knight. Months passed, while argument as to who should pay for the record was decided by a direction each should pay one-half thereof. There are many references to a definite contract; (record, pages 34, 37, 39). A down payment of $ 1,000 was made by the defendant (record, page 43, folios 1 through 10). The defendant took a demonstration of the grinders, while under power (record, page 45, folios 1 through 3).

 Succinctly, the plaintiff's contention is that the defendant accepted these machines after inspection by the defendant and his agent, McDonald Machinery Company of St. Louis, Missouri. The exhibits remained with the late Judge Knight until on or about April 18, 1955 when his file, which was made available to the writer of this opinion on March 26, 1956, indicated the exhibits were returned to the attorney of record for the defendant, and were received by this Court on or about May 27, 1957. Plaintiff and the decedent, Jack L. Berg, were residents of the City of St. Louis, Missouri, at the time the contract was made, as was the plaintiff at the time of the trial.

 The alleged contract was made by the defendant with Jack Berg Machinery & Equipment Company. Upon the death of Jack Berg, the plaintiff was appointed administratrix of his estate and was authorized by the Court to continue the operation of said decedent's business, known as the Jack Berg Machinery & Equipment Company.

 The defendant sets up in his answer three separate defenses: That the plaintiff warranted that said grinders were reconditioned and ready for immediate use and that this was not true; that the sale of such grinders was not to be complete until they had been inspected and found to be suitable for the purposes for which the purchase was made; and that it was agreed that if the grinders were unsatisfactory in any respect, either to the defendant or to his prospective purchaser, the defendant had the right to refuse to accept said goods; and that the defendant found such grinders to be unsatisfactory and not suitable for the purposes for which they were purchased.

 Initially it seems advisable to consider several questions of law which have been raised. It seems to be the position of the defendant that Missouri law does not apply in this case. Clearly, this cannot be the fact as the sale itself was consummated in the State of Missouri. From the written documents in evidence, there can be, in my opinion, no doubt as to the right of the plaintiff to recover in this suit. Independent of these documents, testimony of the defendant is so contradictory and so apparently inconsistent as to lead the Court to give it little belief.

 On December 21, 1951, defendant, by telephone, asked a quotation on grinders. On December 23rd, defendant wired Berg to reserve three grinders until the following Saturday. On December 26, 1951, defendant, by telephone, asked about the equipment. On December 26th, Berg wrote defendant describing the grinders. On December 27th, defendant telegraphed Berg:

 'Please Enter Order Two Bridgeport Face Grinders and One Diamond Machine as Inspected Last Week Sending Two Thousand Dollars Also a Thousand Next Week Desire Pay Balance COD Kindly Wire Me Speed Horsepower Motor Required and See if One Available St. Louis Also Send Sketch or Sample Missing Grinding Segment Will Obtain One Set if No Spares Available. Customer Will Need Grinders Soon Kindly Contact McDonald to Arrangement for Prompt Delivery to Him Wire Acknowledgment Happy New Year'

 In a letter from Berg to the defendant under date of December 28th, Berg acknowledged the purchase of the three grinders for the total sum of $ 12,500 net:

 '* * * delivered to McDonald Machinery, terms as per wire of the above date -- $ 3000.00 down and balance C.O.D. McDonald Machinery is to do the reconditioning work as per your private agreement with them.'

 Under date of December 31, 1951, defendant wrote plaintiff as follows:

 'In accordance with our agreement I enclose a check for $ 2000 to cover down payment on the three grinders covered by your letter of the 28th. * * * total price $ 12500. I will send you another $ 1000 in a few days as I have a lot of money outstanding. The terms on the balance will be COD.'

 'As you may know I arranged with McDonald to buy a 40HP motor and starter. Will you please contact him at once and arrange a time most agreeable to get these ...


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