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Cahn v. Gellman Manufacturing Co.

February 20, 1961

A. L. CAHN AND SONS, INC., PLAINTIFF-APPELLEE,
v.
GELLMAN MANUFACTURING COMPANY, DEFENDANT-APPELLANT



Author: Hastings

Before HASTINGS, Chief Judge, DUFFY, Circuit Judge, and GRUBB, District Judge.

HASTINGS, Chief Judge.

This diversity action was brought by A. L. Cahn and Sons, Inc. (plaintiff) to recover damages from Gellman Manufacturing Company (defendant) for an alleged breach of contract relating to the manufacture of certain bread slicing and wrapping machines. It was charged that defendant did not manufacture the machines in accordance with the terms and conditions of the contract.

Defendant filed a counterclaim to recover damages from plaintiff for an alleged breach of the same contract by plaintiff in refusing to accept the machines. It was alleged that they were manufactured in compliance with the contract terms.

There was a trial before the court without a jury. The court entered findings of fact and stated conclusions of law favorable to plaintiff and entered judgment for plaintiff against defendant on the complaint in the sum of $6,686.33, with interest and costs. Defendant appealed from this judgment.

Defendant's counterclaim was dismissed. No appeal was taken from this judgment of dismissal.

Errors relied on for reversal generally relate to certain factual findings by the court and legal conclusions based thereon charged by defendant to be erroneous. The contested issues arising therefrom will become apparent as we develop the proceeding in the trial court.

Plaintiff is a New York broker primarily engaged in supplying food processing and kitchen fixtures and equipment to commercial consumers. Its principal work is finding buyers for certain equipment and manufacturers who can furnish the equipment for resale at a competitive price. It is not a manufacturer.

Defendant is a manufacturing company located at Rock Island, Illinois. It produces, among other things, a bread slicing and wrapping machine known as the Producer Synchromatic Wrapper and Slicer.

Early in August, 1955, plaintiff learned of a government contract letting for four bread slicing and wrapping machines. The military specifications for these units were MIL-M-2455 A, dated October 24, 1952, hereafter referred to as military specifications.

Plaintiff and defendant had previously done business together. On August 8, 1955, plaintiff mailed defendant, among others, a written invitation to quote a price on the government contract. The invitation was submitted on a printed form with blanks to be filled in by the bidder. A general set of specifications was inserted in the invitation by plaintiff, including the following unit description of the machine:

"Bread Slicing and Wrapping Unit, Power Feed, Electric Wrapping Machine, Gear Feed, (cap., 1500 loaves per hour, 60 cy., 3 phase., 220 V., with extra interchangeable head for each machine to cut slices 7/16inch thick); in accordance with Military Specification MIL-M-2455 A, dated 24 October 1952."

At the head of this form was the printed notation in large type, "This Is A Quotation Request - Not An Order." There was also the following introductory statement, "Please quote us your lowest jobbers prices and discounts on the materials as specified and in strict ...


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