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CURTIS MACH. CO. v. MACINNES

March 3, 1958

CURTIS MACHINE COMPANY, now by merger The Carborundum Company, Plaintiff,
v.
Alfred C. MacINNES and Donald S. MacInnes, trading and doing business as MacInnes Steel Sales Company, Defendants



The opinion of the court was delivered by: WILLSON

In this diversity action the verdict of the jury was in favor of the defendants. At the close of all of the evidence, plaintiff moved for a directed verdict. Decision was reserved on this motion. Plaintiff has now filed timely motions under Fed.Rules Civ.Proc. rule 50, 28 U.S.C.A., for judgment in accordance with its motion for a directed verdict, and in the alternative, for a new trial.

The undisputed facts are briefly stated. In 1953, the Boeing Airplane Company was engaged in making B-52 bombers for the United States Navy. Twin Coach Company of Buffalo, New York, was a subcontractor under Boeing. Plaintiff Curtis Machine Company was a subcontractor under Twin Coach Company.

 In the construction of each airplane, eight silver plated steel bolts of a certain size were required. Plaintiff had the contract to furnish 273 of these bolts. In order to bring the bolts to a certain degree of hardness, they were required to be heat-treated before the silver plating was applied. Upon inquiry by plaintiff, defendants indicated that they had the proper facilities for heat-treating the bolts. On September 9, 1953, plaintiff by writing ordered the defendants to heat-treat to proper hardness 273 bolts. Plaintiff furnished defendants with a blueprint drawing on which were set forth the specifications for heat-treating which defendants were to do. Defendants heat-treated the bolts in three separate batches. The first batch of eleven bolts was the test batch, and apparently proved satisfactory. The first lot of eleven bolts was heat-treated by defendants and returned to plaintiff on September 28, 1953. On October 6, 1953, plaintiff received from defendants 117 bolts. On November 30, 1953, plaintiff received the remaining 145 bolts. After the bolts were silver plated, according to plaintiff's allegation in its complaint, the bolts were rejected by Boeing for use in the airplanes to be manufactured, because of insufficient tensile strength due to improper heat-treatment. The issue in the case presented to the jury was whether the bolts had been heat-treated in accordance with plaintiff's instructions as agreed to by the defendants. This issue involved the interpretation of the drawing as to what the required specifications were, as well as the fact as to whether defendants had performed the contract.

 Plaintiff's claim for damages is unique in one sense, because it was to pay defendants the sum of $ 41.39 for heat-treating all of the bolts, but on rejection, because of the silver plating process, plaintiff claimed damages from the defendants in the sum of $ 3,395.22.

 Plaintiff averred in its complaint that the bolts were to be heated by the defendants in accordance with the following specifications:

 'Heat Treat Specifications:

 Steel AN-H-201, BAC5601

 AL ALLOY: AN-QQ-H-186, BAC5602'

 Defendants in their answer admitted that the specifications set forth in the complaint were those to be followed in heat-treating the bolts. In their answer, at the two pretrials and during the trial, however, defendants contended that they had complied with the contract terms.

 What has been stated up to this point involves the noncontroversial issues in the case. Neither party ordered the trial testimony transcribed, so that the disputed issues of fact mentioned hereafter are simply the court's best recollection of what was said during the course of the trial.

 At the bottom of the blueprint, Plaintiff's Exhibit 1, there appear in print the specifications set forth in the complaint. In the left-hand corner by pen appears the following, with reference to the heat-treatment:

 'HT TO 160,000-180,000 PSI'

 A reference to the Government chart AN-H-201, Plaintiff's Exhibit No. 14, and the other evidence, indicates that the heat-treating process involves the application of heat in a furnace held up to various temperatures for certain periods; an oil quenching, so that the annealing and resulting hardening cycle produce the desired tensile strength in the steel.

 The principal basis for plaintiff's motion is that Donald S. MacInnes, in charge of the work for defendants, admitted on cross-examination that he did not have and therefore did not follow the Air Force-Navy specifications AN-H-201. However, defendants' contention was that they accomplished the same result by following first the blueprint requirement to heat-treat the bolts to 160,000-180,000 PSI, and that the process they used was in all respects equal to the specifications. Defendants said they followed the Bethlehem Steel specifications which are the 'heat-treaters' Bible,' and testimony of an expert for the defendants, if believed by the jury, indicated that the same results were attained by defendants' following the Bethlehem Steel specifications as though they had had and followed the specifications called for in the Government chart. It is to be noticed at this point that the expert witnesses differed as to the interpretation of the blueprint, that is, as to whether the written instructions '160,000-180,000' were different from and superceded the ...


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