the conclusion that Kellett in good faith disputed the claim and took the position that it had a cause of action against Coldaire under the April agreement or that it had the right to terminate it on the facts. Therefore, since I feel that the master's final legal conclusion is valid I do not think it would be proper to recommit this proceeding for a more specific finding or further evidence on the point. Certainly, under the Pennsylvania law which I feel is applicable in interpreting the October agreement, a new contract can, of itself, operate as an accord and satisfaction of existing claims even though the new contract is not yet performed. Cf. McNamara v. Uniflow Mfg. Co., 354 Pa. 174, 175, 47 A.2d 133; York Metal & Alloys Co. v. Cyclops Steel Co., 280 Pa. 585, 124 A. 752; Meaker Galvanizing Co. v. Charles E. McInnes & Co., Inc., 272 Pa. 561, 116 A. 400; In re Redmond, D.C., 16 F.Supp. 176. The master's conclusion that in this case the October contract extinguished the right to a proof of claim arising from breach of the April agreement is, I feel, correct. Accordingly, it is unnecessary to deal with his alternative conclusion that there is no basis in fact upon which a measure of damages could be applied for breach of the April contract.
However, petitioner also vigorously contends that the October agreement was ineffective for any purpose because the obligations listed in Exhibit C had not been agreed upon at the time of signing the contract and because paragraph eight, providing for the possible leasing of part of the Kellett plant by Coldaire, was too vague to be enforceable. However, the master has found that Exhibit C was in existence at the time the contract was executed and delivered by Coldaire's Vice-President and that the latter was in charge of the negotiations between Kellett and Coldaire and had an opportunity to read it. I feel that these findings are correct and that they dispose of Coldaire's first assertion. In addition, I feel that petitioner's contention regarding the effect of paragraph eight must also fall. Assuming, though not deciding, that the provision is too vague to be enforceable, it clearly appears to me to be part of a divisible contract, which would still operate to bar a claim for breach of the April contract. Cf. Friese's Estate, 336 Pa. 241, 9 A.2d 401, 125 A.L.R. 1016; Craig's Estate, 298 Pa. 235, 148 A. 83; Producers Coke Company v. Hillman, 243 Pa. 313, 90 A. 144. The importance of a particular provision in a contract, of course, is vital to resolving the issue of 'separability.' See 37 Yale L.J. 634, 642. Two factors strongly support the master's conclusion that paragraph eight, even if too vague, need not invalidate the entire contract. First, the parties clearly thought the probabilities high that Wilson Company would rent the premises referred to. Second, even if Coldaire could not enforce the rental provisions, it could still obtain title to all of the raw materials, parts, etc., which it needed to manufacture the cabinets. Paragraph one of the October contract indicates the possibilities of shipping elsewhere at least part of what Coldaire bought. Therefore, I feel that the master's conclusion as to separability is correct. Accordingly, I do not find it necessary to pass upon the interesting suggestion that Wilson's signing a lease with Kellett on October 14 destroyed the basis of present argument. Cf. Kresge v. Taylor, 3 Cir., 194 F. 379.
The master has also concluded that there is no basis for a claim for conversion of the tools referred to in the amended reclamation petition but that Coldaire should be allowed a claim for $ 40,260.00, if its petition is amended to request that amount. I feel that the master's conclusions that the trustees committed no tort by refusing to hand over the tools, or even by using them, and that on the facts the sale was ineffective as against them are correct. Cf. 11 U.S.C.A. 110; Callahan v. Union Trust Co. of Pittsburgh, 315 Pa. 274, 172 A. 684; Shipler v. New Castle Paper Products Corporation 293 Pa. 412, 143 A. 182; McCullough v. Willey, 200 Pa. 168, 49 A. 944; Buckley v. Duff, 114 Pa. 596, 8 A. 188; In re American Knitting Co., D.C., 23 F.Supp. 793; In re Leppe, D.C., 50 F.2d 975. Further, I do not think that the evidence supports the assertion of petitioner that the trustees waived their right to treat the sale as fraudulent.
The trustees, however, assert that there is no legal theory to support the master's recommendation that Coldaire be allowed a claim of $ 40,260.00, and that, in any event, they are entitled to a chance to offer defenses or possible setoffs to such a claim. I cannot agree with their first contention. Claims arising on a quasi-contractual theory can be proved in these proceedings. See Brown v. O'Keefe, 300 U.S. 598, 606, 57 S. Ct. 543, 81 L. Ed. 827; Stipp v. Doran, 3 Cir., 18 F.2d 83, 84. The inequity of denying Coldaire the property if contracted for and the right to present a claim for the money it paid is apparent. I feel that, for the purposes of the motion to dismiss, it is entitled at least to press its claim for the money advanced. Cf. Buffum v. Peter Barceloux Co., 289 U.S. 227, 237, 53 S. Ct. 539, 77 L. Ed. 1140; In re Peoria Braumeister Co., 7 Cir., 138 F.2d 520, 523; Shipler v. New Castle Paper Products Corporation, supra. Nor do I think it an abuse of discretion to allow an amendment formally presenting a claim for the $ 40,260.00 paid for the tooling, as the master recommended. The facts upon which the claim is based were set forth in detail in the timely petitions previously filed. Cf. In re Keck, D.C., 23 F.Supp. 121, affirmed 98 F.2d 589, certiorari denied 305 U.S. 646, 59 S. Ct. 148, 83 L. Ed. 417. Accordingly, in this situation I would not feel justified in denying the amendment because it presents a new cause of action. However, I agree with the trustees' contention that they should have the right to present possible defenses or setoffs to this claim. Accordingly, therefore, an order will be entered denying the motion to dismiss, and recommitting this proceeding to the special master for further hearings in conformity with this opinion. At that time, the master should also make explicit findings and conclusions as to the other items of Coldaire's amended reclamation petition, the cabinets, condensing units, and plans and designs. If he concludes that any valid claim exists for these items, possible defenses or setoffs may be presented then, as well.
Conclusions of Law
1. The October contract between Kellett and Coldaire was an accord and satisfaction of any claim by Coldaire for breach of the April contract.
2. The October contract is not rendered unenforceable or void because of paragraph eight of Exhibit C.
3. Coldaire's proof of claim for breach of the April contract is dismissed.
4. Under applicable law, the trustees had a right to treat the sale of the tools, which were described in the reclamation petition, as fraudulent and ineffective as against them.
5. Coldaire has a possible claim for $ 40,260.00 for the money it paid to Kellett to purchase the tools.
6. The trustees' motion to dismiss this claim is denied.
7. The claim arising out of the amended reclamation petition is recommitted to the special master to allow possible defenses and setoffs and for disposition of the other items which are a basis of Coldaire's amended reclamation petition.
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