McVICAR, District Judge.
This is an action to recover the sum of $603,200 for alleged breach of a contract for the sale and delivery of goods.
Plaintiff's complaint was filed November 9, 1942. It filed an amended complaint January 2, 1943 and a second amended complaint April 20, 1943. This latter complaint purports to allege the complete cause of action of the plaintiff against the defendant. Defendant filed a motion to dismiss the second amended complaint on the ground that it fails to state a claim upon which relief can be granted, and in support thereof, alleges many reasons which may be summarized in two: First, that Exhibits A and B do not constitute a contract between defendant and S.R. Taylor Company; and second, that if said exhibits do constitute a contract, that it was not assignable by S.R. Taylor Company to the plaintiff.
The first question, therefore, is, Do Exhibits A and B constitute a contract between S.R. Taylor Company and the defendant, the Canonsburg Pottery Company. In paragraph 2 of the second amended complaint, it is alleged: "On August 6, 1942, defendant, Canonsburg Pottery Company, and S. R. Taylor of Brookline, County of Norfolk, Massachusetts, trading and doing business as S.R. Taylor Company, entered into a contract in writing which the defendant agreed to sell and deliver, and S.R. Taylor Company to buy and accept, beginning approximately September 1, 1942, two (2) carloads of dinnerware per week under the terms set forth in said contract, a true and correct copy of which is hereto attached, made a part hereof and marked Exhibit A and B."
Plaintiff contends that Exhibit A constitutes the offer of the defendant to S.R. Taylor Company and that Exhibit B constitutes the acceptance thereof by S.R. Taylor Company. The relevant part of Exhibit A reads as follows:
We will deliver to S.R. Taylor Co. two cars of dinnerware per week of sample patterns -- barring all strikes or acts of God under which we have no control. To begin approx. Sept. 1st. Patterns & packaging and shipments as selected. We will deliver on this basis for a period of a year and any extension to complete contract obligations of S.R. Taylor Co.
Prices as agreed today August 6th as follows:
No. 115-A-2 108 pc. set 10.40
1608 108 pc. set 12.36
Flora 108 pc. set 12.36
Dorthea 108 pc. set 13.74
1584-H or 1584-J 108 pc. set 14.34
Moss Rose 108 pc. set 14.17
539-H Service Plate 5.25
539-H Service Plate W/5.40
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