Opinion
No. 12712.
Argued December 19, 1958.
Decided January 9, 1959.
Erwin Lodge, Philadelphia, Pa., for appellant.
Frank K. Tarbox, Philadelphia, Pa. (Henry T. Reath and Duane, Morris Heckscher, Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and McLAUGHLIN and HASTIE, Circuit Judges.
Jurisdiction in the instant case is based on diversity and the law of Pennsylvania governs. The decision below turned on the issue as to whether the defendant-appellant, L-M Manufacturing Co., Inc., a corporation engaged in the manufacture of chain saws, tractors and other small powered equipment, by its conduct waived an unperformed provision of a contract made by it with the plaintiff-appellee, Arndt, Preston, Chapin, Lamb Keen, an advertising agency. Under the provisions of the contract referred to the plaintiff-appellee agreed to submit cost estimates to cover jobs specified in the nine counts of the complaint. The court below found for the plaintiff-appellee on eight of the nine counts of the complaint and assessed the fair and reasonable value of the work performed by the plaintiff-appellee for the defendant-appellant in the amounts appearing in the judgment.
The record is a highly detailed one. The basic facts relating to the conduct of the defendant-appellant, deemed to constitute waiver of the requirement of cost estimates, were weighed carefully by the court below and we cannot say that its findings of fact were clearly erroneous in any substantial particular. The ultimate finding of waiver by the court below was in accord with the law of Pennsylvania.
The counterclaim and recoupment asserted by the defendant-appellant were unsupported by any adequate proof of damages and were not pressed before this court.
The judgment will be affirmed.