De Angelis Coal Co. v. Sharples Corp.

concurring specially.

I concur in the result reached in the foregoing opinion but not with all of the reasons given there for arriving at that conclusion.

The opinion seems to find “evidence of the withdrawal of Sharpies’ offer to take the machine back upon payment of the service charge.” With that I disagree. The record shows that on March 5, 1952, Sharpies replied to DeAngelis’ request for permission to return the machine that Sharpies would accept the return of the machine at a cancellation charge of 25%. To this DeAngelis replied that they were keeping an answer in abeyance but would write as soon as possible. On March 20, DeAngelis shipped the machine and Sharpies received it on April 16. In the meantime on April 7, before Sharpies had notice of the shipment, it wrote DeAngelis calling attention to the unpaid purchase price and requesting payment. I think this was not action inconsistent with or in revocation of the preceding offer. Until Sharpies’ offer was accepted the full purchase price remained unpaid and payable and it was entirely in order for Sharpies to say so.

I am of the opinion, however, that the decision in this case turns upon the simple question whether in…

We are here considering an appeal from the United States District Court for the Northern District of California wherein jurisdiction is based upon diverse citizenship. The plaintiff, The Sharpies Corporation, a Delaware corporation, doing business in Pennsylvania, is hereinafter referred to as “Sharpies” or as “appellee”. The defendant, DeAngelis Coal Company, is a co-partnership consisting of several individuals, all but one of whom are citizens of California. The partnership does business in California under the name of American Lignite Products Co. These, as defendants, are hereinafter referred to as “DeAngelis” or as “appellant”.

DeAngelis purchased two like machines called PY-14-Super-D-Canter (we designate them as machines) from Sharpies for $13,545.00 each. Upon the delivery of one of them, it was paid for and put to use, but DeAngelis was dissatisfied with its performance and claimed that it did not function up to a claimed guarantee. After the delivery of the second machine which was not paid for and was not uncrated, a series of letters passed between the parties without solution of the differences, and

on February 22, 1952, DeAngelis wrote Sharpies as follows:

Under…