Before SCHNACKENBERG, KNOCH and SWYGERT, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Charles A. Lawes Company, an Illinois corporation, plaintiff, has appealed from a summary judgment entered by the district court in favor of Detex Watchclock Corporation, a Delaware corporation, defendant, and also the denial by said court of plaintiff's motion for summary judgment.
By its complaint, plaintiff sought to recover damages for an alleged breach of contract. Defendant having answered, depositions, as well as admissions by both parties, were received.
Defendant makes and sells watch clocks, and also sells paper dials and tapes used in the clocks to record the activities of watchmen in their rounds.
Plaintiff under date of May 1, 1947 entered into a written contract with defendant for the production of dials and tapes for defendant. The contract period was 15 years, with a provision that defendant could, by written notice, terminate the contract at the end of 10 years. The contract further provided that upon its termination defendant agreed to buy certain personal property, at a price to be fixed by three appraisers.
There is testimony of Willard Anderson, plaintiff's secretary, that at a meeting in July or August, 1955, there were present, besides himself, William P. Stammer, president of plaintiff, Philip H. Haselton and Arthur F. Gmitro, president and vice-president of defendant, and that Haselton informed plaintiff's representatives that he had determined to terminate the contract rather than exercise an option to continue it for five years.
Thereupon each party appointed an appraiser. They made separate appraisals.
On September 20, 1955, Haselton and Gmitro met with Stammer and Anderson and exchanged copies of their respective appraisals. It is contended by plaintiff that at this meeting, without the appointment of a third appraiser, defendant agreed (a) to buy items listed in the written appraisals, (b) at a price of $40,000, (c) upon the termination of the written contract. In its answer defendant denied this agreement.
Anderson testified that Stammer suggested that they arrive at a figure for the plant*fn1 between the two appraisals and asked "How about $40,000?" Haselton and Gmitro agreed to the figure.
It is uncontroverted on the record that during the conference when the sale price of $40,000 was agreed upon, the following matters were discussed and left undecided: how and over how many years the said $40,000 would be paid; whether the 1947 written contract was to be terminated before April 30, 1957 and, if so, as of what date defendant was to take over the machinery and equipment; and whether (and, if so, when) Stammer and Anderson were to assist defendant, in assembling and operating said machinery and equipment in its plant, and in teaching its employees how to operate it, and what the terms, conditions and wages to be paid them for such personal services, were to be.
Stammer testified he then suggested (to Haselton) that he "go back to New York, write it up and submit it, and Willard [Anderson] and I will consider it".
"* * * we didn't commit ourselves on whether it was a good arrangement or not. However, I think Mr. Haselton agreed with us he would ...