A. A. Baxter Corp. v. Colt Industries, Inc.

A. A.Baxter Corporation (plaintiff) brought this action to recover damages caused because defendants, Colt Industries, Inc. (Colt), a corporation, Fairbanks Morse, Inc., a corporation (maker), and Fairbanks, Morse & Company, a corporation (lessor) failed to deliver a truck scale according to a delivery schedule contained in a lease between lessor and plaintiff as lessee.

Plaintiff is a contractor which on August 4, 1966 knew that a corporation known as Dicco was low bidder on a bid submitted that day to the State of California (State) for construction of a nine-mile stretch of highway east of Barstow.

Plaintiff had earlier received a letter from Dicco that plaintiff would receive a subcontract from Dicco, a part of which would entail hauling borrowed earth according to weight.

Plaintiff’s contract with Dicco was executed August 30, 1966, for a total of $1,213,832.50, of which $522,000 was for earth to be imported by weight in the quantity of 1,800,000 tons.

It may be assumed it was plaintiff’s obligation to establish the weight of earth furnished, which required the installation of a truck scale at the job-site. The scale 'was not mentioned in either the prime…