McGUIRE-CUMMINGS MFG. CO. v. UNITED ALLOY STEEL CORPORATION; UNITED ALLOY STEEL CORPORATION v. McGUIRE-CUMMINGS MFG. CO, 292 F. 832

ARSCHURER, Circuit Judge (after stating the facts as above). That the plates, at least for the most part, were somewhat longer than the specified 12% inches and were somewhat bulged or rounded at the end where sheared is not disputed, nor is it contended that this did not unfit them for úse as follower plates on this job.

Beyond the fact, as shown by the correspondence, that the plates were to be used as follower plates, it. does not appear that plaintiff knew anything about the details of defendant’s contract with the government, and did not know the dimension of the particular space in which the plates were to be used. It appears that they were hot-sheared at 12% inches, but, that, in so shearing them, of necessity the hot soft material was pressed out somewhat, leaving a sort of fin and a rounded edge extending slightly beyond the 12% inches.

After the order was given, plaintiff, suspecting that the product was to be used for follower plates, communicated its suspicion to defendant and stated, in substance, that with its equipment it could only shear the plates, and that its experience had been that shearing such was not exact enough, and plates to be so used should be sawed, advising cancellation of the order and placing it where the plates could be sawed to' length.

When defendant communicated this information to the War Industries Board, it was informed that they did not consider sawing necessary and believed that shearing, such as plaintiff might employ, should be satisfactory, but expressed the belief that this was a matter for defendant to decide. On receiving this information from defendant, plaintiff again wrote defendant saying that their hot-sheared follower plates had proved unsatisfactory for the purpose, but that they wished to put the facts before defendant before proceeding with the order, whereupon plaintiff was directed to proceed.

We conclude from this correspondence that if the plaintiff exercised its usual and reasonable care in hot-shearing these plates to 12% inches in length, but that nevertheless there occurred such variation only as that to which plaintiff had directed attention of defendant before.accepting the contract, the risk of this variation was wholly upon the defendant and it cannot impute blame to plaintiff because plaintiff’s prediction had come to pass.

It is urged that in the order it is specified that the material is bought subject to United States government inspection, and that payment should be made on receipt by defendant of remittance from the Railroad Administration, and that this should defeat the action, because ultimately the government inspectors rejected the plates and manifestly the government never has paid defendant for them. But this is bound up with the proposition of the assumption of risk in the making of these plates by the hot-shearing process.

Before accepting the order plaintiff pointed out to defendant that its facilities would probably not result in a satisfactory product, and although Replogle for the government wrote defendant that he thought the plaintiff’s shearing process would result in a satisfactory plate, he said the defendant would have to use its own discretion.

Under the special circumstances of this case it would seem that if plaintiff furnished the hot-sheared plates in compliance with defendant’s final instructions for such product, with full knowledge on defendant’s part that plaintiff did not undertake such accuracy as would come from a proper sawing of the plates, defendant, in •assuming this risk, to that extent modified these clauses which it had stamped upon its original order. It is urged that serious error was committed in the refusal by the court to permit witnesses to testify that the plates were not produced in accordance with good mill practice generally.

Perusal of the correspondence which constitutes the contract warrants the conclusion that the undertaking of plaintiff was to produce the plates in accordance with its practice without reference to mill practice generally. It frankly stated that its practice had not theretofore resulted, and probably would not result, in the production of accurate and usable follower plates. It evidently was not equipped to produce follower plates, and it was not to be expected that for the purpose of properly executing this contract plaintiff would install a suitable plant.

The tenor of the correspondence would indicate that if it undertook the job it did not expect to turn out a product any better than in. its previous unsatisfactory attempt at making follower plates. This gives added significance to those words in the correspondence which would of themselves indicate that the work was to be done in accordance with plaintiff’s mill practice, and without reference to the mill practice generally.

The fact that a witness for plaintiff had been permitted without objection to testify that its practice was similar to good mill practice generally did not, against objection, warrant the defendant in showing what the general mill practice was. The court’s charge practically ruled out the evidence of what the general mill practice was, and limited this proposition to plaintiff’s mill practice. It is objected that defendant was not permitted to show it had demanded and had been refused payment from the government. This is immaterial here.

Whatever the equities may be between the defendant and the government, because of which the government ought perhaps to pay defendant for these plates notwithstanding they could not be used in the place for which they were intended, it will not be presumed that the government did in fact pay defendant for them. Even if payment by the government were a prerequisite to plaintiff’s right of recovery, the burden would have been upon plaintiff to show that such payment had been made, and in such case it would be pfe-» sumed as against plaintiff that the government had not paid defendant for them.

The statement in the court’s charge that there is no evidence that defendant made an approach to the government “to get payment for these plates under any such circumstances” does not state that no demand whatever had been made. As pointed out, the ultimate fact is that the government did not pay, and it is immaterial whether or not demand therefor was made. Of the many propositions urged in reversal of the judgment we believe we have considered the salient features of the case for plaintiff in error, and are of opinion that the record shows no substantial error to its disadvantage.

Respecting the contention of defendant in error that it is entitled to interest at lawful rate, it seems that the contract here sued on was in writing, made up by the correspondence between the parties. The case falls within the Illinois statute which allows interest on money due upon contracts in writing. We have quite recently upheld demand for interest under circumstances more or less similar. Morrison v. Rieman (C. C. A.) 261 Fed. 355; National Surety Co. v. McCormick (C. C. A.) 268 Fed. 185.

The cause is remanded, with direction to the District Court to enter, in lieu of the judgment rendered herein, a judgment for plaintiff below in the sum of $5,450.02, together with interest thereon at the rate of 5 per cent, per annum from date of delivery of the plates by plaintiff below to defendant below, as appears from the transcript of record herein, to the date of entry of the judgment as hereby directed. Defendant below shall pay the costs hereof.