The opinion of the court was delivered by: CLARY
This matter having come on for trial before the Court without a jury, upon consideration of pleadings and proof the Court makes the following
1. Plaintiff is a California corporation engaged in the business of buying and selling chain; defendant is a New Jersey corporation engaged in the business of manufacturing chain.
2. The amount in controversy, exclusive of interest and costs, exceeds $ 3,000.
3. On July 24, 1950, as a result of telephone conversations, defendant, by telegram, offered to sell plaintiff 500 tons 3/4 inch close link chain at 4 1/2 cents per pound east coast plus galvanizing.
4. On July 25, 1950, by telegram, plaintiff confirmed purchase of 500 tons 3/4 inch close link proof coil chain in new factory condition at 4 1/2 cents per pound f.a.s. east coast.
5. On July 25, 1950, plaintiff sent defendant Purchase Order No. 9485 for 100 tons 3/4 inch proof coil close link, self-colored chain at 4 1/2 cents per pound f.a.s. Philadelphia in new factory condition and to suit specifications. On the same date, plaintiff sent to defendant its check for $ 5,000 as a deposit to be applied against the purchase price of said order.
6. On July 27, 1950, defendant acknowledged, in writing, receipt of Purchase Order No. 9485 and the deposit of $ 5,000.
7. On August 7, 1950, plaintiff sent defendant a further deposit of $ 4,000, thus making a total of $ 9,000 as a deposit on account of deliveries under the sale described in Findings of Fact Nos. 3 and 4.
8. On August 28, 1950, plaintiff sent defendant Purchase Order No. 09641 for 400 tons 3/4 inch proof coil chain at 4 1/2 cents per pound f.a.s., chain to be guaranteed in new condition and to suit specifications. Of the Contract of July 24-25, 1950 for 1,000,000 pounds of chain, defendant, on order of plaintiff, shipped to, and plaintiff accepted and paid for 190,488 pounds of chain.
9. On December 8, 1950, the parties agreed, after the shipments set forth in the preceding finding of fact, to increase the purchase price to 7 1/2 cents per pound for black chain, or 10 cents per pound if galvanized, and defendant further agreed to accept against Purchase Orders Nos. 9485 and 09641 specifications for 300,000 pounds BBB chain at 7 1/2 cents per pound, f.o.b. Fieldsboro, New Jersey.
10. On December 8, 1850, under Contract No. 44972, plaintiff sold to the United States Navy 300,000 pounds of black chain at a net price of 12.3 cents per pound to be delivered to Norfolk, Virginia, free of freight.
11. On December 21, 1950, plaintiff sent defendant Purchase Order No. 10006 for 300,000 pounds of chain, welded, BBB coil, close link, steel black, at 7 1/2 cents per pound f.o.b. Fieldsboro, N.J. to be shipped to Norfolk Naval Shipyard, Norfolk, Virginia.
12. Defendant never delivered any of the chain which it contracted to sell plaintiff for the use of the United States ...