Each contract provided in Article 9, paragraph 8, 'To guarantee the fulfillment of the disposition of this Article, the Contractor agrees to have the Administration withhold notes covering the last three * * * payments of the Contractor's participation until the period of guarantee expires.'
Article 20, 'In * * * case of Contractor's failure in the fulfillment of his undertakings, the Administration reserves the right to cancel the * * * Contract without having recourse to any legal actions, and to demand to put Article 15 * * * into effect, thus raising claims of indemnities.'
Article 15 provided, 'In * * * case of cancellation of the * * * Contract, due to the Contractor's failure in fulfilling his undertakings * * * the Contractor agrees * * * to refund * * * immediately and without any claims whatsoever, payments already effected for locomotives not yet shipped, together with interest * * *.'
Apparently the contract was not cancelled and the sanctions of Article 15 were not applied. Absent any effective steps to proceed under this article, plaintiff resorted to the United States district court for the enforcement of its claims. Some months after filing its original complaint and while a motion by the defendant for a more definite statement was pending, plaintiff amended its complaint praying that the matter be referred to arbitration.
In view of our understanding of Article 21, we put to one side the question of laches, of waiver, and election of remedies. See La Nacional Platanera etc. v. North American Fruit & Steamship Corp., 5 Cir., 1936, 84 F.2d 881, at page 882; American Sugar Refining Co. v. The Anaconda, 5 Cir., 1943, 138 F.2d 765, at page 766, affirmed 322 U.S. 42, at page 44, 64 S. Ct. 863, 88 L. Ed. 1117; see notes 117 A.L.R. 301, at page 314; 161 A.L.R. 1426, at page 1433; Galion Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 7 Cir., 1942, 128 F.2d 411, at page 413. The question of whether or not an answer has been filed would be pertinent only in determining whether or not the defendant was equally bound by the doctrine of waiver. Here the defendant has indicated its desire to have the entire matter litigated in these proceedings. Radiator Specialty Co. v. Cannon Mills, Inc., 4 Cir., 1938, 97 F.2d 318, at page 319, 117 A.L.R. 299; Kulukundis Shipping Co., S.A. v. Amtorg Trading Corp., 2 Cir., 1942, 126 F.2d 978, at pages 988, 989; American Locomotive Co. v. Gyro Process Co., 6 Cir., 1950, 185 F.2d 316, at page 318; cf. Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 1935, 293 U.S. 449, at page 453, 65 S. Ct. 313, 75 L. Ed. 583.
Likewise as to the question of a stay of proceedings which plaintiff did not in fact request in its amended complaint but in a later motion. Although this is a diversity proceeding, see and cf. 9 U.S.C.A. § and 4.
As to defendant's motion for a more definite statement under 28 U.S.C.A., Fed.Rules Civ.Proc. Rule 12(e), see and cf. Id. Rule 8(a), (e)(1) and (f). As we held in Metropolis Bending Co. v. Brandwen, D.C., 8 F.R.D. 296, at page 297, 'To the pleadings is assigned the task of general notice giving, whereas narrowing and clarifying the basic issues between the parties, ascertaining the facts or information as to the existence or whereabouts of facts relative to those issues is the role of the deposition-discovery process aided by the pre-trial hearing. Hickman v. Taylor, 329 U.S. 495, 500, 67 S. Ct. 385, 91 L. Ed. 451. Evidence need not be plead. All that is required is a short and plain statement of the claim showing that the pleader is entitled to relief; each averment to be simple, concise and direct; technicality is not required. Sierocinski v. E. I. Du Pont De Nemours & Co., 3 Cir., 1939, 103 F.2d 843.'
We understand from statements made at the time of argument that the defendant's counsel is in a position to make answer to the allegations of Count One of the complaint. As to Counts Two and Three, defendant objects to the present form of the complaint in that it has been subjected to an overall claim of $ 2,233,944.90. Plaintiff's counsel having stated that at the time the complaint was drawn he was not in possession of sufficient facts to state whether or not the claim for $ 1,058,696.20 was attributable entirely to one of the contracts or to be divided between them, by this time surely he is in possession of such information and able to aver it.
In view of the foregoing, an order will be filed this date denying plaintiff's motion for a stay of proceedings in this court, as well as denial of the motion to submit the matter to arbitration. Plaintiff will be directed to file an amended complaint properly apportioning its claim between Counts Two and Three. While the plaintiff is not required to plead any specificity of detail, it does not seem unreasonable to expect that at this date plaintiff should be able to plead at least in general terms the amount and extent of the damage which it asserts it is entitled to in view of the asserted violations by the defendant of the guarantee contained in each of the respective contracts.
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