Opinion
No. 5266.
December 4, 1934.
Appeal from the District Court of the United States for the District of New Jersey.
For former opinion, see 73 F.2d 312.
Warwick Potter Scott, of Philadelphia, Pa., for appellant.
Walter L. McDermott, of Jersey City, N.J., for appellee.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
This case is here on petition for rehearing.
We held in the opinion filed herein that the contract on which the suit was based was divisible because there was a definite minimum amount of merchandise costing $70,000 to be ordered for the first year, at a definite price, the cost to the Canister Company, "that is, materials, labor and overhead as you (Canister Company) figure it." The defendant breached this part of the contract, and the plaintiff was entitled to damages it sustained in consequence thereof, including the expense incurred in preparing to carry out its part of the contract.
The second part of the contract included a joint enterprise in which the Canister Company was to manufacture its product and Wood Selick, Inc., was to sell it to third parties "at prices to be mutually agreed upon" and equally divide the profits. We held that this part of the contract offended against the Statute of Frauds, and for the reasons set forth in our opinion we think that this part of the contract was invalid.
The petition is denied.