March 5, 1937
THE SMOKY CITY; ZUBIC
TRANTER MFG. CO.
Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Before BUFFINGTON, Circuit Judge, and WELSH and MARIS, District Judges.
BUFFINGTON, Circuit Judge.
This admiralty case turns on the question of fact whether the contract between the parties was simply to furnish material for an installation designed by the vessel owner, or whether it was a contract by the libelant to design installation and furnish the material for such design. The court below found the former contention was the fact and entered a decree in favor of the materialman and against the appellant vessel.
On due consideration had, we find ourselves in accord with the court below. After negotiations, a letter embodying the contract was written by libelant addressed to Zubic, who owned the vessel, which strongly supports libelant's contention that it agreed simply to furnish material, and the weight of the proof is to the same effect. The letter makes no mention of Zubic's steamer; it makes no mention of design or installation, but speaks simply of material: "We are pleased to furnish you the following material," "trusting we may be favored with your order for this material"; it does not provide for installation and delivery is "f.o.b. our works."
Without entering into the further contentions made, all of which have been duly considered, we affirm the decree below, but, in view of the very long delay of the parties in disposing of the case, and as a warning against such delays, we direct that all interest allowances in this case be reduced to 3 per cent. With such modification, the decree below is affirmed.
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