Appeal from the District Court of the United States for the District of New Jersey; William N. Runyon, Judge.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
In this case it appears from the written contract of the parties that motor company furnished to Keystone a model of a gasoline filter, and Keystone agreed to construct for motor company a large number of filers similar to the sample. The contract also provided: "Motor Corporation agrees to furnish to Keystone from time to time, when and as requested by Keystone, at the cost and expense of Motor Corporation, such quantity of suitable and proper dies as may be necessary for the manufacture of the aforesaid filters and the clamps hereinafter mentioned."
To insure payment therefor by motor company to Keystone, eight shareholders of the former gave an indemnity bond to Keystone, which provided "that the liability of each of the undersigned shall never under any circumstances or condition exceed the sum of $15,000.00."
Averring that it had performed its contract and that motor company had not paid it, Keystone brought suit on its contract and against the eight shareholders on their surety bond. The motor company filed a counterclaim alleging it had suffered damage in a large amount by the alleged failure of Keystone to fulfill the contract. The sureties defended on the ground that Keystone had not so fulfilled its contract, and that the changes from the model which Keystone made in the filter had not been authorized by motor company in the way the contract provided for variations therefrom.
The trial occupied some ten or eleven days, and the voluminous testimony taken is not set forth in the record before us. The court, in its charge, submitted to the jury the question of whether the changes made from the model were, under the proofs, made by those authorized to make them, and whether, if so authorized, Keystone had duly performed. These underlying questions the charge submitted as follows:
"Now, I want to say this: While the testimony has apparently covered a very wide lot of ground and the problem has been approached from a great many different angles, there is after all a simple proposition: Did or did not Keystone manufacture these gas filters in accordance with the original sample, or in accordance with any modifications and alterations thereto, which bore the stamp of authority on the part of those who agreed to them, if they did agree to them? That is the whole question that is involved here and the one which you must determine."
In the absence of the testimony, we cannot say the proofs as to the changes were not sufficient to warrant submission to the jury, so we find no error in that regard. And the verdict, which was
For plaintiff against defendants
50,000 filters at $1.05 $52,500.00