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WILLARD C. BEACH AIR BRUSH CO. v. GMC

UNITED STATES DISTRICT COURT, DISTRICT NEW JERSEY.


September 19, 1951

WILLARD C. BEACH AIR BRUSH CO.
v.
GENERAL MOTORS CORP. et al.

The opinion of the court was delivered by: FAKE

FAKE, District Judge.

This cause is now before the court on a mandate issued out of the United States Court of Appeals, 3 Cir., 184 F.2d 569, reversing an order of this court, dated June 9, 1948, 88 F.Supp. 849 and remanding the case to this court with directions that the order of this court appealed from, be reversed and the cause remanded to the District Court with directions to vacate the order of discontinuance with prejudice entered on June 9, 1948, and to permit the filing of defendants' plea of accord and satisfaction and, thereupon, to hear and dispose of that plea in limine and take such further proceedings in the cause as to right and justice may appertain. In conformity, therewith, on November 22, 1950, an order was entered by this court vacating its order of June 9, 1948.

On November 14, 1950, an order was entered here amending the plea of accord and satisfaction, and permitting the filing of a plea of release. Plaintiff replied to defendants' pleas denying the material allegations of facts and alleging that the facts pleaded are insufficient in law to have legal effect, and demand dismissal of the pleas.

 The case not having reached the jury calendar, plaintiff gave notice of motion for an order directing the striking of defendants' pleas and the fixing of a date for trial of the cause.

 On a reading of the affidavits filed on the issues thus raised, it clearly appears that there are issues of fact which must be fully heard, and cannot be disposed of in a summary manner. Plaintiff's motions are, therefore, denied and the issues will be set down for jury trial in conformity with the mandate.

 The issues to go to the jury will be limited to such as pertain to the subject of release and accord and satisfaction. I will meet with counsel in advance of trial, in an endeavor to frame the issues to be heard by the jury.

19510919

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