Meguiar v. Universal Die Casting Co.

/ VALLÉE, J. Appeal by defendants from a judgment for plaintiffs in an action to recover money paid pursuant to a contract.

[772]On March 7, 1946, plaintiffs and defendants entered into a contract which read:

“Carl Lortz

“We agree to build a 12 cavity die to fabricate garden hose nozzles per sample for the sum of $1925.00. We hereby acknowledge receipt of $642.00 down payment. You agree to pay an additional $642.00 on April 2, 1946 and the balance when die is completed and sample castings are approved. We will then supply a minimum of 10,000 sets to you at 10c per set, as cast.

Very truly yours,

Universal Die Casting Co.

M. E. La Hue, (s)

M. E. La Hue, Sales Mgr.

Approved (s) Carl H. Lortz”

Upon the execution of the contract plaintiffs delivered to defendants, as the sample, a machined brass nozzle, made the $642 down payment, and on April 2, 1946, paid defendants $642. Defendants completed a 12-cavity die, and made and delivered 81 sample castings to plaintiffs. The sample eastings were in two parts, the body and the cone. Each was beveled. In order to obtain a watertight fit when the cone was placed firmly in the body, both surfaces would have to be smooth and regular. Precision was required. The two parts constituted a set. Plaintiffs assembled the parts and when put together the sample castings leaked and for that reason they were not approved by plaintiffs.

Plaintiffs sued to recover the two payments of $642 with. interest. Defendants cross-complained for the balance of the contract price, loss of profits, and sales tax.

The court construed the contract as requiring defendants to make a die and from it manufacture nozzles which did not leak water when in use. It found that defendants did not at any time deliver or offer to deliver any nozzle which did not leak, that the 81 sample castings leaked water when in use, and rendered judgment for plaintiffs for the two $642 payments with interest. Defendants appeal.