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BLACK INDUS. v. BUSH

March 13, 1953

BLACK INDUSTRIES, Inc.
v.
BUSH



The opinion of the court was delivered by: FORMAN

The plaintiff, Black Industries, Inc., a citizen of Ohio, is suing the defendant, George F. Bush, a citizen of New Jersey doing business as G. F. Bush Associates, for breach of a contract. The defendant has moved for a summary judgment in its favor.

The complaint alleges as a first cause of action that the plaintiff, a manufacturer of drills, machine parts and components thereof and a purchaser of subcontract work from other suppliers, obtained an invitation to bid upon certain contracts with The Hoover Company upon three parts known as anvils, holder primers and plunger supports. The plaintiff assumed the task of obtaining a supplier of these parts and on about March 22, 1951, the defendant reached an agreement with the plaintiff to manufacture 1,300,000 anvils at a price of $ 4.40 per thousand; 750,000 holder primers at $ 11.50 per thousand and 700,000 plunger supports at a price of $ 12 per thousand, all of which were to be made in accordance with government specifications and in conformity with certain drawings. The plaintiff agreed to 'service the contract', be responsible for all dealings with The Hoover Company and would be entitled to the difference between the defendant's quotations and the ultimate price. The Hoover Company agreed to purchase the parts from the plaintiff at a rate of $ 8.10 per thousand anvils, $ 16 per thousand holder primers and $ 21.20 per thousand plunger supports.

 The complaint further alleges that after undertaking performance of this contract, the defendant failed to complete the order, which caused a loss of $ 14,625 to the plaintiff, for which sum, together with interest, the plaintiff demands judgment.

 As a second cause of action the plaintiff alleges that pursuant to understandings between the parties, the defendant agreed to manufacture 525,000 plunger supports at a price of $ 13.20 per thousand, and 969,500 anvils at a price of $ 4.40 per thousand. Relying upon this the plaintiff accepted a purchase order from Standby Products Company, quoting a price of $ 23.20 per thousand for plunger supports and $ 8.10 per thousand for anvils. The defendant failed to comply with this undertaking, causing a loss to the plaintiff of the sum of $ 4,460.95 and interest thereon, for which the plaintiff seeks judgment.

 Answering as to the first cause of action the defendant alleges his price quotations were tentative only, admits nonperformance but asserts that this was the result of strikes and the plaintiff's failure to perform, alleges that by a subsequent agreement plaintiff and defendant were each to receive one half the difference between the defendant's price and The Hoover Company's price, and asserts that he did not know the details of the plaintiff's agreement with The Hoover Company when he undertook performance. As to the second cause of action, the defendant denies the existence of the alleged agreement to manufacture for Standby Products Company, disputes the accuracy of certain of the plaintiff's allegations as to quantities or prices of the articles to be manufactured, and asserts that he did not produce the articles because Standby Products Company cancelled the order.

 As separate defenses, the defendant states that the contract set forth in the complaint is void as against public policy, that it is void in that it violates the New Jersey statute of frauds, and that it is too vague and indefinite to be enforced. The defendant alleges that the plaintiff by the terms of one of the letters constituting the contract is entitled to receive compensation only out of money collected from its customers, and since the contract was cancelled by The Hoover Company, there is nothing to be collected and the plaintiff is not entitled to compensation. Finally, the defendant denies liability on the grounds of impossibility of performance.

 The defendant now moves for a summary judgment in his favor asserting that the agreements alleged in both the first and second causes of action are void as being against public policy. The alleged contract covering production for The Hoover Company was set forth in a 'memorial document' consisting of a letter dated April 13, 1951, signed by Mr. Franklin G. Gepfert of Black Industries and signed and agreed to by the defendant.

 G. F. Bush and Associates

 Box 175

 Princeton, New Jersey.

 'Gentlemen:

 'Re: The Hoover Co. contract

 'In order clearly to outline the agreement as to the manner in which the contract of The Hoover Co. of North Canton, Ohio, is to be received, manufactured, shipped, billed and paid for, I am taking the liberty of reducing the understanding to writing.

 'I have spent considerable time, effort and money in developing the contract and bringing it to the point of issuance of a ...


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