Appendix — DH Overmyer Co. v. Frick Co.

Supreme Court brief1972

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IN THE

Supreme Court of the United States _

Ocrosz TrEm, 1971

. No. 127

. | hh |

o —,

D. H. OVERMYER Co., Inc., or Onto

oe and .

_ D. H. Overmyer Co., INc., oF Kenrucry, Petitioners,

ou a ,

Frick CoMPANY, A PENNSYLVANIA CoRPORATION,

_— +

_ON WRIT OF CERTIORARI TO THE COURT OF APPEALS,

| LUCAS COUNTY, OHIO ~

_ INDEX TO APPENDIX .

) Page

Petia: Docket one ee) 1

—Petition in in the Court of Common Phat With Instal-

ment Note Attached as Exhibit A .............. 3.

Appearance of Attorney for Defendants and. Confes- |

RA ee NON 55 Sa hod erent ow wd «ue oc oe bce

Judgment Entry in the Court of Common Pleas . 8

- Notice of Judgment on Cognovit Note iegieeaaecee te ae

“Motion for New Sg 2) EE en ee oe ee 11

Affidavit of Joseph W. Westmeyer a. Motion — .

a. Sor cil Trial Mee sendsctel veces ookway cece dle 12..

v __ Respondent. —

a Index to Appendix Continued |

* | Page. |

Motion To Vacate J pdt SHECUS Se ree veer eeetrene 13.

Answer of Defendants and Cross Petition Vkteea ease eae

- Journal Entry: Overruling: Motion for New Trial, and’ ;

Motion To Vacate J udgment ies Ube ee des eeeee sas 20

Court of Appeals? Assignment of Error, No. 2 ..:.:. 21

Court of Appeals: Journal: Entry Affirming Trial _

Court pesbecse ee ee Be

Ohio Supreme Court, Transcript of Record, p.111....° 23

Ohio Supreme Court Order of Dismissal .... . denseces Of

_ Ohio Revised Code'§ 2323.13.20... ee. 24°

~ Respondent ’s Designation of the Record To Be In- ..

cluded in the Appendix ...................5.... 3.

Additiorial Pertinent Docket Entries ............. ee

- Excerpt From Transcript From Hearings in the Com- |

mon Pleas Court of Lucas County, Ohio of August

15, 1968 and September 5, 1968. . (See Item I

Attached) ............. pe Tr erer see 28.

- Defendants’ Mation To Stay Siete Filed in the |

’. Common Pleas Court of Lucas County, « * Ohio.

(See Item II Attached) ............./..° ban ees

vit of Howard -F. Burpee and Exhibits ( See _

i III Attached) ....... Was ne nceeeveseeces si 31

'. _ Affidavit -of Paal C. Guth lied Exhibit, (See Item IV a

—} . Attached) ... 205... . 2... wererr ere reer rye ‘61

JSAfidavit of Pani 0. Guth: and Exhibits. Gee Item V |

Attached) SoHe be eetbewancswescsbocesedcecewece 68

Index From Defendaxite’ ( Overmyer) Memorandum in|

Support of Motion To Vacate Filed in the Com.” -

-mon Pleas Court of Lucas County, Ohio. © S See |

| Ftem VI Attached) .........2..00000.00 000... 79

Excerpt of Journal Entry Filed in the Common Pleas

: Conrt of Lucas County, Ohio on March 3, 1969.

(See Ttem-VII Attach ttached) ...... th rteeeseeeecse. 80

Index to Appendix Continued. a ti

mo : oan : sat Page |

Defendants-Appellants? —{Overmyer) Motion for Re =

; consideration, Filed in the Court of Appeals of - 7

Lucas County, Ohio. .(See Item VIII Attached) .. 83

__Defendants-Appellants’ (Overmyer) Motion To Certify

7 ~~ |. .the Case to the Supreme Court of Ohio Filed

a in the Court of Appeals of Lucas County,“Ohion =

| ‘ Item IX Attached) ve eeseevens Pe ewe eee ee sees BRO

Defendants-Appellants’ (Overmyer) Application for

: °* Conclusions of Fact Filed in the Court of Appeals

of of Lucas County, Ohio. (See Item X attached) .. 85

« Journal Entry Filed in the Court of Appeals of Lucas

/ ‘County, “Ohio Denying Defendants-Appellants’

° (Overmyer) Motion To. Certify, Application for

_ ‘ ‘Conclusions of Fact and Motion for Reconsidera-

tion. +(See Item XI Attached) ........ teeseeees 86

_ Mandate From the Supreme Court of Ohio to the Com-

mon Pleas Court. (See.Item XII Attached) ..... 87°

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“APPENDIX FOR PETITION. FOR CERTIORARI IN ©

hs THE UNITED STATES SUPREME COURT

D. H. Overmyer Co. Inc. ¥. The Frick Company

Pertinent Docket Entries rio

Co. P. ne ae = |

. Cause No. 204697 o*

Pg. 8197 A4 AW or

Attorneys: SP a . EF

Shumaker, ion & Kendrick —Fyniix Commazy, a corpora-

.. ‘ @ Yion, Plaintif’-Appellce

, Bugbeo & Conkle—D. H. Overmver Co., Ino, i a corporation,

a | Defendants-Appeliants.

-. 1968

July 12--Petition, Warrant of Attorney Military Atdavit,

Answer and praecipe filed. |

J uly 12—Judgment as stated above and for ovate. Jour.

“: . 392-78, ; ‘of

July 16—Notice of Jadgment on 1 Cngeovit noté rasiled |

D. H.-Overmyer Co. Inc. 201 East 42nd Street, New

_York,:“New York, 10017. Certified: Number’ 059724.

. Return receipt Trequésted. ° Postage 50¢ |

. July 16—Notive’ of Judgment on Cognovit note mailed to

D. H. Overmyer Co. Inc., a Kentucky Corp.°201 East .

, 42nd Street, New: York, New York 10017. Certified.

H# 059723. Return Receipt Requested. Postage 50¢ ~

July 16—Notice of Judgment on Cognovit note mailed to

‘D. H. — Co. Inc., ’ “/4 €.T. Corporation. ~~

. . - .

. 2 . .

¢ ‘ .

: tem, 1036 Union Building, Cleveland, Ohio 44115.

Certified + — Return Receipt Requested. Post.

* age 50¢

, _ 16—Notice of J adement ¢ or Cognovit ial mailed to -

-D. H. Overmyer Co. Inc. c/o €.T, Corporation Sys-

tem, 1700 Kentucky Home Life Bldg., Louisville, Ken-

tucky 40202. Certified + 059726. ‘Return Receipt.

Requested. Postage 50¢ _

J dad 16—Notice of Judgment oa Cognovit. note mailed to

- D. H. Overmyer Ine., 302 South Byrne Road, Toledo,

Ohio 43615. Certified + 069737. Return receipt re-

| quested. Postage 50¢°

J ily 22—Motion of defendants for New Trial, ‘flea.

J uly 22-—Motion of defendants to Stay Execution, filed.

July 22—Affidavit, filed. - :

August 6—Motion of defendant to Vacate Judgment Ren-

dered on Warrant of Attorney, filed.

August 6—Answer of defendants-and Cross petition of de-

' fendant D. H. a Co. an Ohio ik aia

filed.

Nov. 16—Motions to Stay Execution. is overruled, for’ a

new trial overruled. Demurrer of defendants to plain-

tiff’s causepf action overruled. J our. 401-154.

Dec. 4—Notice. of = and Praecine filed. “CA 6552

a an COURT OF COMMON PLEAS, Lv0as COUNTY, OHIO

_ Frick Company, a corporation, 231 West Main Street,

Waynesboro, Pennsylvania 17268, Plawntif’,

OMe se — 8

DE. OvEEMYER Co., Ino., a corporation, 302 South Byrne

. Road, Toledo, Ohio 43615, .

_D. -H.. Ovenmyzr Co., Inc.,’a corporation, 1700 Kentucky

Home Life Buijding, Louisville, Kentucky 40202,

-. Defendants.

o Petition ot

. 1. Plaintiff is a Pennsylvania corporation qualified in

accordance with the provisions of. Ohio Revised Code

Chapter 1703 to do business in Ohio.» - a |

2. D. H. Overmyer Co., Ine, Toledo, is an Ohio corpo-_

ration which resides in and does business in Lucas County,

Ohio. To the best of plaintiff’s knowledge and to the best —

of its attorneys’ knowledge, the last known Lucas County

address of said defendant was and is 302 South Byrne.

Road, Toledo, Ohio 43615. Said défendant’s statutory

agent is ©. T. Corporation System, 1036 Union Commerce _-

Building. Cleveland, Ohio 44115. | |

_ 3. D. H. Overmyer Co., Inc., Louisville, is a Kentucky -

corporation. To the best of plaintiff’s knowledge and to

the best of its attorney’s knowledge, the last known ad-

dress of said deferidant’s principal office was and is 201°

‘East 42 Street, New York, New York 10017. Said de-

fendant’s statutory agent. is C. T. Corporation System, -

- Kentucky Home Life Building, Louisville, Kentucky 40202.

- 4, On June 1, 1967, defendants, acting through duly au-

thorized officers, executed and delivered to plaintiff a

XQ a

"promissory note containing ‘a warrant of attorney (here-

‘after the said promissory note is called the ‘‘Note’’)\pur-

suant to which the defendants jgintly and severally prom-.

ised to pay to the order of plaintiff in twenty-one (21)

~, equal monthly installments” the principal sum of One

Hundred Thirty Thousand Nine Hundred Seventy-seven

Dollars ($130,977.00) plus ‘interest thereon at the rate of ©

. 6% per year on an add-on basis, said interest to com-

-mence on June 1,-1967. A true copy of the Note is at-

tached hereto, is designated Exhibit A, and is made a

| part of this Petition. |

5. On May 1, 1968, defendants failed to pay to plain- |

tiff the monthly installment payments required by the

Note, and said failure to pay the monthly installment pay- :

ments required by the Note has continued to this’ date.

6. By reason of defendants’ failure as described in the °

- immediately preceding paragraph, plaintiff;acting in ac-

cordance with the terms of the Note, hereby elects to and

does hereby declare the entire remaining unpaid principal

of the Note, namely, Sixty-two Thousand Three Hundred

Seventy Dollars ($62,370.00), together with all interest.

thereon, immediately due and payable, presentment, de-

. mand, notice and protest having been duly waived. by the

defendants.

Wueneror:, plaintiff prays for judgment sintat the de.

fen@ants for the sum of Sixty-two Thousand Three Hun- .

dred Seventy Dollars ($62,370.00) with interest thereon at-

the rate set forth in the Note from the Ist day of May,

1968, until the Note is paid in full, and for costs of suit. -

SHUMAKER, Loop & Kenpriox

By /s/ ‘Roserr A. JEFFERIES, JR.

‘ Robert A. Jefferies, Jr.

Attorneys for Plawmtif =

Suite 500—811 Madison Avenue

Toledo, Ohio 43624

Phone 241-4201 .

Statzor On10 . alae

_ County or Lucas — ae | 7

Robert A. Jefferies, Jr., being duly sworn, says that he

_is the duly authorized’ attorney for said plaintiff, that the

| foregoing petition is founded upon an instrument in parit

ing-for the payment of money ; that’ said instrument in

- writing .is in his possession ; -and that he verily believes

the statements contained i in the foregoing instrument are

true.

Sician A. JEFFERIES, JE.

Robert A. Jefferies, Jr.

Sworn to Nwred me by said Robert A. Jefferies, Jr., and

by him subscribed i in 7 — this 12th md of J uly,

1968. ;

‘.. Joyce A. KwiaTKOwsEI

Notary Public

- Joyee A. Kwiatkowski

~ Notary Public, aa County, -

Ohio

“My Commission: Expires 11-14-71 _

-_~

Exhibit A

IN STALLMENT N OTE

Rane $130, 977.00 2 | = .

New York, New York |

J une 1,1967

For value received, the undersigned, jointly and sever-

ally, promise to pay to the order of Frick Company, a

_. Pennsylvania corperation, at its office in. Waynesboro,

Pennsylvania, 17268, the sum of One hundred. thirty-thou-

sand ‘nine hundred seventy-seven dollars ($130,977.00) in

twenty-one (21) equal. monthly installments of six thou-

sand eight hundred and ninety-one doHars and eighty-five .

cents ($6,891.85) which installments include interest at-the. —

rate of six (6) per cent per anntim on an add-on besis com-

mencing ‘June 1, 1967.

‘The first installment shall be payable ta une 1, 1967, and

the remaining installments on the same date of each suc- —

cessive month thereafter, until this Note has been paid in

full.

The Makers or any of them may, at their option, as

| prepayments on the principal amount of this Note without |

penalty ; together with interest accrued to the date thereof.

Prepayments shall be- applied to the installments of Sas

cipal due on this Note in the order of maturity.

The undersigned hereby waive presentment, demand,

‘ notice and. protest of this Note. —

The entire unpaid balance of this Note shall become due

_ vand payable at the option of the Payee, without demand or

notice, on the appointment of a receiver of the.undersigned .

or of its properties, if such receivership i is not discharged

within fifteen (15) days; or on the filing of a petition by

or against the undersigned, under the Bankruptcy Act of

the United States, if such petition is not discharged within

_ fifteen .(15) days; or on the default in the payment of any

installment of principal or interest, if said default con-

8 \». ee |

_-tinues for fifteen (15) days; or on the general assignment ,

_ for the benefit of creditors, if said. anpignmens | is not dis-

charged within fifteen (15) days. Qo.

The undersigned hereby authorize any attorney desig-’

nated by the Holder hereof to appear in any court of record

in the State of Ohio, and waive this issuance and service

. of process, and confess a judgment against the under- |

signed in favor of the Holder of this Note, for the princi- °

pal of this Note plus interest if the undersigned defaults

in any payment of principal and interest and if said de-

fault shall continue for a period of fifteen (15) days.

_. ‘Payee agrees to remove any Mechanic’s Lien or liens

filed by the Payee against any. property of the undersigned. |

including three Affidavits of Lien which were filed ‘on be-.

; half of Frick Company in respect to its claim of $194,031.00

and which were recorded by the Recorder. of Lucas County,

. Ohio as follows: °®

t -

No. 501285, Volume of Lien Records 46, Page 468,

‘No. 501831, Volume of Li Lien |

_ No. ‘502867, Volum ume of Lien Records 36, Page 542:

D. H. Over YER Co., Ino.

(a Kentucky corporation)

By D. i. Geenucvie

Chairman & Chief Executive

Officer.

D. H. OvERM YER Co., Inc. “si

. _ (an Ohio corporation) :

Suretey C. OVERMYER ; Y %

Shirley C. Overmyer . roar

_ By D. H. OvERMYER | -_

Chairman & Chief Executive

Officer |

O..

IN THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO

. No. 6552

Appearance of Attorney for Defendants and Confession -

of Judgment

a * *. « . e «@ «© ‘e *°

| By virtue of ‘the warrant of attorney contained in a cer-

‘tain promissory note annexed to this Answer and the peti--

ee filed herein by plaintiff, I, an attorney at law. in the

1 courts of record of this State, do hereby enter an

said promissory note and said. warrant of attorney and who

a appearance for the above-named defendants who executed ~

waive the issuing, and sérvice’ of process therein, and-I do °

hereby confess a judgment in’ favor of said plaintiff, .

against said defendants, on said promissory note for the -

sum of Sixty-Two ‘Thousand Three Hundred Seventy

Dollars. ($62,370.00), ‘being the amount appearing due for

the principal of said: ‘promissory note, plus interest a

at the rate set forth in said promissory note from Ma

1968, and also for.costs of suit, taxed and to be taxed:

= Rowan, BowMan

\ Attorney for Defendants

- 402 Lof Bldg.

Toledo, Ohio

Phone No. 243-5227

IN THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO

No. 6552 |

Judgment Entry

@ . * ° * . ° * * °

This day came Frick Company, plaintiff, by its attorney,

Robert A. Jefferies, Jr.; also appearéd in open court,

Ohio corporation, one defendant herein, and D. H. Over-

_ myer Co., Inc., a Kentucky corporation, the other defend-

_for and on behalf of D. H. Overmyer Co., Inc. an _

sf *

ant herein, J. Ronald Bowman, an attorney at law of this

. court, and by virtue of a warrant of attorney annexed to

_ the promissory note attached to the petition in said cause,

shown to have Seen duly executed by said defendants,

entered the appearance of said defendants, and waived the

issuing and service of process in this action, and confessed

- a judgment on said promissory note against said defend-

_ ants and in favor of said plaintiff for Sixty-Two Thousand

Three Hundred Seventy DoHars: ($62,370.00) plus interest

thereon from May, 1968 at the rate set forth in the Note,

and for costs of suit taxed and to be taxed. €

Ir Is THEREFORE, Onpenzp, Apauperp. aND Decree THart:

(1) Plaintiff recover from D. H. Overmyer Co., Inc., an

Ohio corporation, one of the defendants herein, the follow-

ing sum (hereafter enitl sum is called the ‘J mene

Sum’’): |

Sixty-two Thousand Three Hundred Seventy Dollars

" ($62,370.00) plus interest thereon from May. 1, 1968.

at the rate set forth in the Note (6% add-on interest:

computed over a 21-month period on a base sum of »

$130,977.00 or the equivalent of the said 6% add-on

' interest) , together with costs herein expentied, taxed

and to be taxed ; or Nt

(2) Plaintiff recover from D. H. Overmyer Co., Inc, a

Kentucky corporation, one of the defendants herein, an -

‘amount equal to the Judgment Sum or

(3) ‘Plaintiff recover from each of ‘the defendants auch.”

sums which, when totaled; will equal but not exceed the

Judgment Sum. & \ 2

- /s/ NICHOLAS J. Dausee

, Judge

IN THE COURT OF COMMON PLEAS, LUOGAS ‘COUNTY, OHIO

- Notice of Judgment on Cognovit Note —

| ~ Case No.»204697 |

ad s * , * e s e _@ e *

To D. H. Overmyer Co., Inc.,, Defendant:

This is to inform you that a Judgment i in the amount of 7

$62,370 plus interest at the rate decreed in the J udgment -

Entry has been entered against you ona Cognovit Note in

the above-captioned case in the Common Pleas Court of

‘Lucas’ County, Ohio, on July 12, 1968. This notice is sent

to you in compliance with Sec, 2323. 13 (c) of the Ohio ©

naveen Code.

Lucas Counry Common Pizas Court.

Rosert Kopr, CrerK or Courr

o . By /s/ Broan RB. Lone

| tiated Clerk

11.

-_ IN THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO.

No. 204697

Motion for New Trial

_ oe ° * ° ~° ee .

Now come. the defendants and moye the court to. vacat

_ the judgment rendered on July 12, 1968, and for a new

_ trial for the following causes which materially aifect the

’ substantial rights of defendants, to-wit: :

L Irregularity in the’ proceedings of the crefailing:

2. The judgment is not scsteined by sufficient avitlense

__and is contrary ‘to law. eo. « *

3. ‘Newly discovered evidence, material for the defend-

ants, which with reasonable diligence they could not have

discovered and produced at the trial.

And for other errors: manifest enon the face of the

record.

/3/ BucBrE & ConzLz

~ | | Attorneys for Defendants

CERTIFICATE oF Service |

(Omitted).

_ party and of the court by which defendants were prevented |

-from having a fair trial.

’ - - .

- &. . : .

° - . °

‘

12. .

; ° . ° eo . e - .. ,

IN THE COURT OF COMMON PLEAS, LUCAS COUNTY,‘OHIO , ~,

. ° . a No. 204697 ® _ . ’ a“ a: 1"

"fe ° . -* * oe @. @ *

* Joseph W. Westmeyer, Jr., being duly sworn, says that’

he is the attorney for the applicants for a new trial herein»-

on the grounds of newly discovered evidence. ays

Affiant says that the-judgment herein was entered by.’

‘virtue of a warrant of attorney without notice to these

_- defendants; that the consideration for the ‘note upon which’

+ judgment was entered was the contract price agreed to be

- paid for the installation of a fefrigeration system in a

warehouse building located at 3630 South Street, Toledo, -

Ohio; that- defendants will present evidence that plaintiff

furnished and installed a refrigeration system: of poor

’ design and quality which did not meet the specifications —-

‘ of the contract and that warranties given by plaintiff . ~~.

in connection with the contract for the installation of said |

equipment were breached ; and that because defendants had .

no notice of the entry of the court’s, judgment herein ‘they

could not with reasonable diligence. have produced such |

_ material evidence prior tothe court’s entry’of judgment.

} _ JoserH W. WestMeven, JE.

| Joseph.W. Westmeyer, Jr.

) 22nd day of July, 1968. coe

‘= . NS Aran J. Conmta

a "Notary Public

oy ,.Lneas County, Ohio .

Allan J. Conkle;*Notary Public ~ i.

_ + State of Ohio—Attorney-at-Law =.

"+ Unexpiring Commission =

2°" * O.B.C./See.14708

* Sworn to before me and subscribed in my presence this —

"tN THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO”

ste Fe ane eet eae eee ‘

_* a ee ae @ * e ° e *, e

he’. Defendants ‘respectfully move the court to vacate and

set aside the judgment en against them herein on the .

12th day of July, 1968 during the present term of court, ©

said judgment having been“entered by virtue of a ‘warrant

of attorney. without notice to these defendants.

Defendants say that they have a good defense to this

action and. the note on which judgment was rendered, as

‘shown by their answer submitted — which they.

request leave to file herein.

Le - : _®

Ae - ee /3/ Boas & ConxLz :

(iteruags fe Defentiots

7 IN THE couEr oF gr fs es COUNTY, on

a | oe ‘No. 204697 | 2 - ¢

a Anower of Detendanis end Cosas Petition af Debeniant.:

Ce D. H. Overmyer Co.. Inc. an Ohio Corporation

e. e° ® * 2 e Se 4 2 e € -« ee

1. For answer to plaintiff "8 petition; defendants deny

each, all and singular the. allegations of said petition not

~~ hereinafter admitted to be true. _

wf. Defendant, D. H. Overniyer Co., fons iaage

ration, hereinafter called ‘‘Overmyer”’, on or prior to

_ February 11, 1966; employed Nixon Construction Co., Inc.,

‘as a general contractor to construct a cold storage ware-

housé on Overmyer’s real estate located ‘at 3630 ——

. Street, Toledo, Ohio °

_ 8, On-or about. the 1th aay. of ‘Febery, 1966, Nixon |

. Qonstruction | Co., Inc., and plaintiff entered into a written _

: — Moreinafter referred to as. “contract”, enersies :

“Wp

NEE

_ 14 ae

plaintiff was engaged for a.price of Two Hundred Twenty-

three Thousand Dollars ($223,000.00) to furnish machin-”

ery, equipment, labor, materials and supervision, and to

’ perform all work necessary fort the construction of a com-

plete automatic refrigeration ‘system to be installed ‘in the-

said vold storage warehouse. A coopy of the contract,

_marked Exhibit ‘‘A’’, is annexed hereto and made. a part

. hereof. Thereafter, Overmyer, pursuant to paragraph

-* numbered 15 of the contract, assumed all of the rights and’

privileges and became subject to all the duties and obliga-

> ‘tions df Nixon Construction Co.,-Inc. thereunder.

4. Defendants say that the promissory note referred to -

~~ in plaintiff’s. petition was executed as and for a part of

the. purchase price of Two Hundred Twehty-three Thou-

sand Dollars ($223,000.00) for a complete automatic re-,

frigeration system furnished and installed by plaintiff pur- :

suant tothe contract in the cold-storage warehouse being >

constructed for and proposed to be operated by Overmyer.

5. The said refrigeration system was ‘not furnished and

installed in accordance with the contract of purchase, in

that plaintiff supplied materials, equipment and machinery

of poor quality. and design and negligently installed the

same in an unworkmanlike manner, and Overmyer was re-

quired to, and did, engage other contractors to repair

defects therein which resulted ‘from the nereueest work,

- design and: defective materials.

6. The said refrigeration system was to have been a -

completely autonomous and automatic refrigeration sys-.

.tem, but because plaintiff failed. to.comply with the can-

tract, and because the said system was negligently installed

by plaintiff, the system did not operate. automatically.

‘. Overmyer was required to, and did, employ personnel to

tend, maintain and control the system at all times.

7. The contract provided that said refrigeration system.

was. to have been completed and ready, for final acceptance

on August 15, —, whereas plaintiff did not actually com-

“15

plete the’ installation until. March 17; 1967. Overmyer

‘ ‘ sustained lost profits because it was not able to operate the

_ cold storage warehouse ‘during the seven. month yperiod

between the date provided for completion of the ‘ware-

house in the contract and: the actual date of completion.

8. The refrigeration system installed by plaintiff was

guaranteed and warranted by it to be free from defects

in material and workmanship and to hold a‘temperature

of minus 10° F. to within the limits of standard tempera-

ture controls, but, as installed, the said system was not

free from defects,jn material‘and wo and was

totally inadequate for the pape = which it was in- .

stalled. . e.

- 9, Resaabe of the facts set. forth in senumesihie num-

-bered 5 through 8 above, Overmyer’s expenses and lpsses

exceeded the balance which plaintiff claims ‘to be due on the

note, and there was a failure of — for: said

note,”

_ CROSS PETITION

First Cause of Action

10. Foriits cross petition against plaintiff, Overmyer

incorporates all of the allegations of . the foregoing an-

‘swer as fully as though repeated herein. ° -

11. Overmyer says that’ prior ‘to February 11, 1966, it -

employed: Nixon Construction Co., Inc. as a general con- |

tractor to construct a cold ‘storage warehouse on Over.

myer’s real estate located at 3630 South _Btredt, — 7

Ohio.

12. On or about the lith day of February, 1966, - Nixon

Construction Oo., Inc. and-plaintiff entered into a written

agreement, hereinafter referred to as ‘‘contract’’, where-

by plaintiff was engaged for a price of Two ‘Hundred

Twenty-three Thousand Dollars ($223,000.00) to furnish

machinery, equipment, labor, materials and supervision,

equipment and machinery supplied

“16.

_ and to perform all work necessary for the construction of -

a.complete automatic refrigeration system to be -installed

in the said cold storage warehouse. A copy of the contract,

marked Exhibit ‘‘A’’, is annexed hereto and made a part .

hereof. Thereafter, Overmyer, pursuant to paragraph

numbered 15.of the contract, assumed all of the rights and

privileges and became subject to all the duties and obli-

gations of Nixon Construction Co., Inc. thereunder.

13. Overmyer has duly performed alf the conditions of

- the contract on its part.

‘14. Plaintiff breached the contract in that it performed

its services in an incompetent, negligent and unworkman-

like manner, and in that_it supphed materials, equipment

and machinery of such poor design and quality that the ©

refrigeration system furnished by plaintiff would not op-

- erate as represented by plaintiff and Overmyer was re-

quired and compelled to engage, and did, i in fact, engage,

other contractors'to repair the defects existing in the re-

frigeration system; which defects existed solely bécause

of the negligent work,-. design, a . defective matey’s,

y plaintiff. :

15. By reason of the facts set forth in the first cause of

‘action Overmyer has been damaged in the sum of Twenty-

six ¢ thousand Hight Hundred Dollars ($26,800.00).

Second Cause of Action |

16. For. its ‘seeond cause of action, Overmyer incorpo-

rates each,.all and singular the allegations contained in its

first cause of action and further says that the machinery,

- equipment and materials designed, fabricated and supplied

_ by: plaintiff were to have constituted a — auton-

omous and automatic refrigeration system.”

17. Because of plaintiff s incompetent, negligent and un-

satisfactory design: and workmanship, and because plain-

tiff designed, fabricated and/or supplied machinery, equip-

ment and materials unsuitable and inadequate to meet the

EI COE S Git BSCE A OE A BA AA MIE OE LOPLI AAAS BOE

\ el

demands of the systexn, and because of plaintiff ’s breach

. of the contract, aforesaid, the automatic refrigeration

system, or int and essential parts thereof, repeatedly

broke down and became inoperative and failed to operate

automatically and Overmyer was compelled and required

to, and did, in fact, hire, engage and employ additional

qualified personnel to tend, maintain and control the sys: :

7 tem at all times.

18. By reason of the facts set forth i in the second cause —

of action Overmyer has been dainaged i in the sum of Nine

Thousand Dollars ($9,000.00). ,

Third Cause of Action

19. For its third cause of action, Overmyer incorporates

each, all and singular the allegations contained in its first

and second causes of action and further says that in and

by the contract, it was provided that the said refrigeration .

system was to be ready for demonstration and final ac-.

ceptance on or about August 15, 1966, and. the completion -

of the said work on or before that date was expressly

' made a condition of the said contract, and a part of the

consideration. for which plaintiff was paid the price set

‘forth therein. .

20. Plaintiff entered upon the performance of the work |

under said ‘contract, but wholly and totally failed and ©

neglected to complete the said work in the time specified

in the contract for the completion thereof.

21: By reason of plaintiff’s failure to complete the said.

work within the time specified in the contract, Overmyer

was unable to have the construction of the cold storage

_ warehouse completed, to take possession thereof, and to ~

have the same occupied as a public cold storage ware-

house, and Overmyer lost the use of such completed ware-.

house for approximately seven (7) months. — |

. 92. By reason of the facts set forth in the third. eunse of

action, Gvermyer has been damaged in the sum of Fifty

| Thousand Five Hundred Dollars ($50,500, pale

7 18

Fourth Cause%of Action

. 28. For its fourth cause of/action, Overmyer incorpo-

- rates each, all and singular th allegations contained in its

first, second and third causes of action and further says

’ that, among other things, plaintiff guaranteed and war-

ranted that, for a period as‘set forth in said contract, the

-machinery and equipment manufactured by it and sup-

plied by it would be free from defects in material and

workmanship, and that the machinery specified - therein

would hold a temperature of minus 10° F. to within the

limits of standard temperature controls. __

24. The said refrigeration system installed by plaintiff

was not-free from defects in material and workmanship

and was totally inadequate for the purposes for which it

was installed.

- 25. Within the period set forth in the — and upon .,

- ascertaining that the said equipment was defective and

inadequate, Overmyer demanded of plaintiff that it make

‘such repairs and changes in the refrigeration system as

were’ required to comply with the provisions of the said

agreement and warranty, and plaintiff wholly failed, ne-

glected and refused to take such remedial steps, as cornet

and still 80 fails, neglects and refuses.

26, Upon the failure, neglect and refusal of plaintiff to

complete the aforesaid contract and warranty, Overmyer ©

was compelled to, and did, cause the said refrigeration

‘system to be put in a proper condition so that it would

comply with the aforesaid contract and warranty. .

27. Prior to ascertaining that the said refrigeration sys-

tem did not comply with the provisions of the said contract —

and warranty, and while Overmyer was ignorant of such

facts, it paid to plaintiff the-sum.of Two Hundred Twenty- -

three Thousand and Six Dollars ($223,006.00), the total -

amount which it was required to pay to plaintiff'under the _.

aforesaid contract, in the form of cash and instalineent

note. |

PM te 0 AS BRR he te lie a RL DON PAN ON me MD on

Ad .

ry ,

28, By reason of the foregoing facts, Overmyer has been

‘damaged in the sum of Kighty-six Thousand Three Hun-

dred Dollars ($86,300.00)..

Wuererore, defendants pray that plaintiff’ 8. cause of

| action be dismissed, and that judgment be rendered for™ —

defendant, Overmyer, against plaintiff in the sum of |

Eighty-six Thotsand Three Hundred Dollars ($86,300.00),

Plus . interest and for their costs herein expended.

Bucper & Conxiz

By /s/ ‘Auan J. ConKLE

Allan J. Conkle |

_ Attorneys for Defendants

2001 Toledo Trust Building

Toledo, Ohiq 43604

,° “ Phone: 244-6788

Grats or New York > “ &

County or New YorK 88:

_G. RB. Sileox says he is Vice-President for D. H. Over-

myer Co., Fré., an Ohio corporation, and for D. H. Over- .

myer Co., Inc., a Kentucky corporation, and is duly au- —

thorized in the premises, and that the statements and aver-.

ments contained in the foregoing answer and cross peti-

tion are true as he verily believes. —

~ _G. RB. Satcox

Sworn to before.me and subscribed i in my presence, ‘this

31st os of July 1968,

GERALD N. GotpsERe

Notary Public

‘Gerald N. Goldberg

¢ + Qualified in New York County

a ¥ > :

, . : C4

. ¢ Pee:

; - 2 '\ .:

P ;

fee ' Notary Public, State of New York .

ane No. 31-6558320

Commission Expires March 30, 1970

ot)

30 :

‘IN THE COURT OF COMMON PLEAS,..LUCAS COUNTY, OHIO:

a - 4. : . . °

“No. 204697

wee ~ yp — wore On Oe re te ee annth -

_ ° ee, ~~ + .

a : . > ~

: . : A een, Tae ——

: =

* -*& * * e.: * om 7s * *

‘ 4 .

This day this cause came on to be heard on the motions

of the defendants to Stay Execution, for a New Trial and .

- to Vacate Judgment and a demurrer to the petition and

the same were submitted on the record, supporting memo-

randa, affidavits, exhibits and arguments of counsel.

Upon consideration thereof, and being fully advised i in

‘ the premises the court finds that the Motion to Stay_

Execution, the Motion for a New Trial and the Motion to |

' Vacate are not well taken. The court farther finds that _

the demurrer i is not well taken. ° 7

It is therefore, Ontanzn, Avzupeep and DecreEp that the

defendants’ Motion to Stay Execution is overruled. —

~ It is further Onperep, Apsupcep and Decrzzp that the de:

fendants’ Motion for a New Trial is overruled. .

It is further ORDERED, ApsuDGED and DzcREED that the

defendants’ Motion to Vacate Judgment is overruled. |

It is further OnpERep, Apsupexp ant Ducasmp that the

defendants’ demurrer to the petition be overruled.

It is further OxpERED, Apsuperp and Drcezep that the

' Motion and Affidavit for examination of the debtors in aid

of execution filed in this court on July 17, 1968, be in full

force and effect and that any duly authorized officers of

- said corporations appear before this court at 10 AM on

the 16th day of December, 1968 in courtroom. #3 and an-

swer concerning all their assets including those items

listed in the Motion and Affidavit filed in this court on

J poly, 17, 1968.

Fea

21 °

; ? To so much of this order as is adverse to the interests .

_ .of the defendants they object and except.

Joun J. Connons, J. ;

; 7 Common Pleas Judge

1 . Agee @ :

‘ SHUMAKER, Loop and Kenrick

Shumaker, Loop and Kendrick

Attorneys for Plawtiff

Buaseg and ConKLE |

Bugbee and Conkle

Attorneys for Defendants |

Approved as to Form Only x

eer

samba ee ne

Court of Appeals: Assignment of Error, No. 2

- “Tt is a denial of Appellants’ rights to due process

- ander the Sttite and Federal Constitutions to be denied

Pe an opportunity to present a defense to a judgment on’a

cognovit note when such judgment is taken without notice

‘and where a valid defense is asserted in an answer ten-

- dered with a motion to vacate. the a filed within

term.” —_

im THE COURT OF APPEALS, LUCAS’ COUNTY, OHIO

. CA No. 6552 _ |

| Journal Entry

. ee @ . » . «8. .-.« .

This cause came on to be heard on appeal on questions —

of law from the judgment of the Common Pleas Court, —

Lucas County, Ohio; and the same was submitted to this

Court on the original papers, the record, the Bill of Excep-

Judgment. »

tions, the Affidavits and Exhibits. presented in the Common —

Pleas Court and arguments of counsel, - f

The Court, being fully advised in the premises, finds

that the trial Court, with no abuse of discretion, properly

overruled the defendants-appellants motion to vacate the

It is therefore Onpzrep, Apsupcep and Decteep that the

judgment of the Common Pleas Court of Lucas ‘County,

Ohio, is affirmed af costs of the deféendant-appellants ; and

the cause is remanded to that Court for execution of judg-

Ment. / :

To all of which defendants-appellants except.

: Currorp F. Brown ~ |

Judge of the Court of Appeals,

Presiding

Hasvey G. Straus 7. =

Judge |

Joun W. Porter

Judge

Filed

, Court of Appeals

Sep. 22, 1969

Approved: a .

Bucsrr & Conkiz |

Bugbee & Conkle : "

Attorneys for Defendants-Appellants

_ Suumaxer, Loop & KEnpRIcK

James M. TuscomMan |

Attorneys for Plaintiff- Appellee

| Oblo Suprome Court, Transcript of Record. fi

: Proposition of Law No. 5:

\-It is a violation of the right of trial by jury provided by

. Sectton 5, Article I, of the Ohio Constitution and of

the right to due- process of law provided by the Four- .

. -teenth Amendment to the United States Constitution

for a trial court to deny a jury trial to the maker of

a note who tenders a validly stated defense against

the original holder thereof who has taken a judgment

on a warrant of attorney when the trial court refuses

_ to take evidence on the merits of the defense before ©

deciding whether to vacate the judgment. |

Authorities cited i in support of Proposition of Law

No. 5: .

Fourteenth Amoniment to the Umited States Constitution | |

_* aa * * e: : * : * * 2 .

\ Sniadach v. Family Fiance Corporation of Bay View, —

-395 U.S. 337, 23 L. 2d 349, 89 S, Ct. 1820, 37 Law

week 4520 (1969) . oe \

Sm — |

| ‘The Supreme Court of the State of Ohio «

_ ‘1969. Term, To Wit: December 17, 1969 No. .69-720

Jounnat 49, Page 677 Apreat rom THe Covrr or APPEALS |

vor Lucas County eae ee ae 3S

-. This cause, here on appeal as of right from the Court of .

Appeals for Lucas County, was heard in the manner pre-

scribed by law, and, no motion to dismiss such appeal hav-

‘ing béen filed, the‘ Court sua sponte dismisses the ‘appeal

for the reason that no substantial constitutional question

- exists herein. .

It is further ordered. that the appellee recover from the » .

appellant its cost herein expended ; that a mandate be sent

Aon; and that a copy of this entry be certified to the

Clerk of the Court of Appeals for Lucas County for entry.

Ohio Revised Code

to the/Common Pleas Court to ca this judgment into Ne

at the time of making such confession, must produce

the warrant of attorney for making it to the court be-

ers résides or in the county where the maker. or any

-One of several makers signed the warrant of attorney |

authorizing confession of judgment, any ent to -

““(C) Immediately-upon entering any such judgment

. the court shall notify the defendant of the entry of. the

judgment by personal service or by registered or cer- 7

tified mail mailed to ‘him at the address set forth in the -

petition.’? amended, effective 12-1-67) .

"95, ;

< © Ov THE SUPREME COURT oF THE ‘UNTTED STATES

October Term re | |

| ‘ No. 137 ise

D. H. Ormacrm Go, Ina, o” Kiusrvors,

| Petitioners,

are Meas, ae

Respondent Designation of the Record To Be Included

_ : eee:

. ?@ 2

“To: Russell Morton Brown, Eoquire

508 Federal Bar’ Building

Washington, D. C. 20006 .

Pursuant to Supreme Court Rule 36(2), penpeuheid oe

by desi the following portions of the record to be

inelude in the Appendix:

rings additional print dc entries of

August 15. ‘ Afédavit of Panl ©. Guth fle.

7 * Hearings held on Angust 15, 1970 and September, 1970,

‘ Ge Oy 7

CAR =

26 .

_ August 15. Affidavit in Opposition to Motion to

Stay Execution and for a New Trial filed.

August 15. Affidavit in Opposition to Motion to

- Stay. Execution filed: |

August 21. Supplemental Memorandum i in Opposi- °

_ tion to Defendants’ Motion to Stay Execution, Motion

for New Trial and Motion to Vacate Judgment filed.

Angust: 92. Defendants’ Memorandum in Support

to Vacate J udgment filed.

August 22. ~Demurrer of Defendants to aman 3

Cause of Action filed.

‘November 27. See Execution Doc. 23, page 347,

EX No. 23847.

| December 3. Motion for Stay of -Execution and to

< . Fix Supersedeas Bond filed.

“Qevember 3. Bond =

1969” ma : ; .

March 3. “Oral. motion — Nune Pro Tune entry.

_ Jour. 409-265. aa Gi ( °

2) Excerpt re transcript from hearings i in the Com-

‘mon Pleas Court of Lucas County, Ohio of August 15, 1968

‘and September 5, 1968. (See Item Fattached). |

(3) Defendants’ Motion. to Stay Execution filed in the

Common Pleas Court of Lucas County, Ohio. (See Item.

II attached).

(4) Affidavit of Howard F. Burpee ¢ and exhibits.. (See

Item ITI attached).

.. (5) Affidavit of Paul C. Guth and. exhibit. (See Item

FV attached).

(6) Affidavit of Paul C: Guth and exhibits. (See hia.

4 attached). 7

: \

bs hd

LEME BAPTA EGE, TR a Ns = Battie y RS Tea SI RI to a IN

. . .

(7) Index from Defendants’ (Overmyer) Memorandum ‘

in Support of Motion to Vacate filed ‘in the Common Pleas

Court of Lucas County, Ohio. (Sée Item VI attached).

6°

(8) Excerpt of J ournal Entry filed in the Common Pleas

Court of Lucas County, Ohio on March 3, 1969. (See Item on

VII attached).

(9) Defendants-Appellants’ ewcuyens Motion for Re-

consideration filed in the Court of Appeals of Lucas County,

Ohio. (See Item VIII attached). >

(10). Defendants-Appellants’ (Overmyer) Motion to Cer- -

tify the Case to the Supremie Court of Ohio filed in the |

Court of Appeals of Laces Conny, ‘Ohio. (See Item a

- attached).

-(11) Defendant- Appellants” Oeinaee iieleaties for

Conclusions of Fact filed in the Court of Appeals for Lucas.

County, Ohio. (See Item X attached).

(12) Journal Entry filed in the Court of Axipesla of

- Lucas County, Ohio denying defendants-appellants’ (Over-

myer) Motion to Certify, Application for Conclusions of

Fact and Motion for: Reconsideration. (See Item XT at-

tached). 4

(13) Mandate from the Supreme Court of Ohio ‘i the

7 — Pleas Court. ‘Ge Item XII attached).

SHUMAKER, Loop & Kanparce

Rosert B. Gosiine

Robert B. Gosline

James M. -

James M. nsecam

811 Madison yong Suite 500

Toledo, Ohio 43624

. 241-4201

_ Aitorneys for Respondent,

April 16, 1971 |

Ruciupie. Fsieen Trunserigt From Hontings in Common. Plove |

; Sine ot Fees Conn, Cites of Ameeet.16, 1408 and See

—— ,

ITEM I

Darexpants’ Bru oF Exceptions.

Br Ir Rememserep, That on the hearing of the above- |

entitled cause, in the Court of Common Pleas of Lucas

County, Ohio, in the April, 1968 Term of said Court, on

Thursday, August 15, 1968, before the Honorable John J.

Connors, Jr., one of the Judges of said Court, the following

proceedings were ned, to-wit :

eee @ @ :

(18) Mr. Tuschman: Your Honor, as to the motion for |

temporary injunction, I have the opinion rendered by the

United States District Judge, and he has stated here, Judge

Walter Mansfield, the United States (14) District Judge in ©

New York rendering his opinion on the motion for tem-

porary injunction, his conclusion of law:

' -. Plaintiff has failed to show any likelihood that it

_ will prevail upon the merits. On the contrary, exten-

sive documentary evidence furnished by defendant indi-

cates that the plaintiffs’ action lacks'merit. No basis

for equitable relief in the form of a stay or injunction

is indicated. <Plaintiffs’ suit is limited to an action of

damages, and there is no showing that it would suffer —

any irreparable injury as a result of defendant’s en- |

forcement of the security. The effect of granting relief -

would be to prevent the institution of court proceed-

ings' in Florida and Kentucky in violation of the policy

enunciated in Title 28, U.S.C. Bection 2283, o

and they state at the bottom,

“This shall constitute the Court’s finding of fact and

conalusions of law, Judge Mansfield.’’ ,

I have a certified copy =< the J udge’s — in that case,

Your Honor.

“99

(25) Mr. Wolfe: ** *

T would submit if Mr. qenabecsein Wesel Kika 40 tate jabs

about the pleading of a valid-defense, a valid legal defense, .

we have not set up only counterclaims. We. have asserted

counterclaims but we have also set up a valid legal defense |

on that note and that lies in failure of consideration. — ae

(32) Mr. Wolfe: Yes. We have an affidavit here, but

our affidavit, quite frankly, does not go to the pleading

aspect of the case. It goes to the merits of the case.

The Court: Well, I think in all fairness what you should

_ do is be given the opportunity to look at what Jim has just

filed today—

Mr. Tuschman: I will furnish him with copies, Your

Honor. .

The Court: —and if you want time to file a brief and

memorandum in — to this, you are entitled aa oe

that.

If you want oral argument on that, all right. sf you ced

to submit it, I will make my decision on what you filed.

(35) The Court: How much time will you need to get

in whatever. you have to get in in — to what Ji im

has just filed today? .

Mr. Wolfe: We will do what is reasonable with the Court.

(36) Mr. Tuschman: Oan we state a date then?

The Court: I want to give him a reasonable time to file

whatever he wants to.

Mr. Tuschmari: A week? :

_Mr. Wolfe: A week will be fine.

- The Court: You have- ‘whatever r you want filed a by a week

from today. .

(38) Thursday, Septembér 5, 1968. Court Room No. 3,

‘Lucas County Court House, Toledo, Ohio, 2:15 o’clock P.M. -

- The Court: Cause No. 204697, Frick Company versus .

. D. H. Overmyer Company, Jnc., et al. , You make whatever

argument you want at this time, for the record, and I will |

take the case under advisement and give you my decision. -

So who wants to proceed. ; .

a : * ¢@¢ @ @ @ .

67) Mr. Garrigan: I beg the Court’s pardon, I didn’t

mean, to object so strenuously. I, myself, have filed fifteen

suits on behalf of Overmyer in New York. But Overmyer

_ in three years built 180 warehouses in thirty states: There

aren’t hundreds of contracts, there are tens of thousands

__ of contracts with many contractors.

ITEM II

_IN THE COURT OF COMMON PLEAS OF LUCAS COUNTY, OHIO

No. 204697

Motion To Stay Execution

* + * * * + * = Sd *

Defendants respectfully move the court to stay execution.

_of and any procedure to enforce the judgment entered

herein on the 12th day of July, 1968 pending the filing of a

Motion for a New Trial and/or a Motion to Vacate said

Judgment, and the disposition thereof.

_ /8/ Bucsre& Conxkiz

. Attorneys for Defendants

A °

IN THE court OF COMMON PLEAS OF LUCAS COUNTY, OHIO

No. 204697

“Affidavit of Howard F. Burpee

oR (Filed: August 15, 1968)

- 7

State or New Yorke ’

County or New York {..°%

- Howard F. Burpee, being duly sworn, deposes and says

that;

(1) I am an engineer in the New York office of Frick

Company, plaintiff herein, and I am submitting this affidavit:

in opposition to the motion of defendants herein to stay

execution and the related motion for a new: trial in the above

action. I am informed and believe that judgment i in favor

of plaintiff was made and entered by and in this Court on

July 12; 1968. |

(2). The contract dated February 11, 1966 ( cinaaed to in.

the affidavit of Joseph W. Westmeyer, Jr., Esq.) between

plaintiff Frick Company (hereinafter ‘‘Frick’’) for the con-

‘struction of a refrigeration system in: defendant Over-.

_Meyer’s warehouse located at 3630 South Street, Toledo,

Ohio was negotiated by me. Subsequent to negotiations and

‘the executiof of. said contract, I was in general charge of

this matter for the New York office. By reason of my par-

ticipation in the negotiations and subsequent responsibility

for this job, I am. fully familiar with the facts hereinafter

set forth. Copy of such contract is annexed hereto as Ex-

hibit I. Such contract’ and the documents incorforated

therein will hereinafter sometimes be. referred to as the _

—“Contract’’.

(3) Iam informed aad believe that Mr. Westmeyer’s afl

davit which is the basis for the instant motions in effect

a that the note = which the judgment was entered

¢e

32002¢«C«

herein was given in payment ‘‘for the installation of a 2

refrigeration system in a warehouse building located at 3630

South Street, Toledo, Ohio;....”. I am informed and

_beligve that Mr. Westmeyer then states in his affidavit that(”’

at the new trial ‘‘defendants will present evidence that. .”/

plaintiff furnished and installed a refrigeration system of

' poor design and quality which did not meet the specifica-

. tions of the contract and that the warranties given by

plaintiff in connection with the contract for the installa,

tion of said equipment were breached; .. .’’ a

(4) As will appear from the facts hereafter wel forth in ©

this affidavit and the exhibits thereto, these motions are

totally devoid of merit and an obvious last ditch effort to

impede and hinder the plaintiff from collecting the price

' payable under the Contract which in accordance with its.

original terms should have been paid in full more than a

‘year and eight months ago. In addition, any'stay of execu-

' tion herein will deprive Frick of the security (i) upon

' which Frick, insisted as a condition for completing the in-

stallation after defendant had defaulted in making the pay-

ments required under the Contract during the construction

period ; and (ii) on the basis of which Frick twice extended

the date for complete payment of the full ‘ae provided for’

- originally by the Contract.

A. The Bekasind of this Action.

(5) Frick is engaged in the business of ‘nai tactattiue :

and installing refrigeration equipment. By the Contract,

Frick agreed with Nixon Construction Company (herein-

after “Nixon’’) to install the refrigeration equipment of

. the Toledo warehouse of D. H. Overmyer Co., Inc. (herein-

after “‘Overmyer”).. Due to Nixon’s unstable financial con-

dition, defendant required that Nixon’s obligation under the.

Contract be guaranteed by Overmyer. e

(6) Although the relationship een Nixon rae Over-

myer was s ostensibly that of eral contractor and owner,

)

_ 33 -

I am informed and believe that Nixon was in fact a wholly

_ owned subsidiary of Overmyer. As a matter of fact the _

general contractor’s work was not carried out by N ixon, but

' by a corporation known as Green & White Construction

Company, Inc. (‘‘Green’’). Nixon was a subsidiary of

_ Green and in January 1967, Overmyer purchased the stock

of Green and as a result, Nixon was absorbed into Over-

myer.. The necessity for this action was apparently the ree —

sult of Nixon’s inability to meet its obligations, and annexed

hereto as Exhibit 1 is letter dated January 16, 1967 from

. Overmyer informing Frick and other suppliers of its acqui-

sition of Green in order that Green (and Nixon) ‘‘would be

able to fully satisfy its obligations to you * # *.”

(7) Frick encountered considerable difficulties on this job,

The building was behind schedule with the result that Frick

was delayed in making its installation. In addition, and of

great importance to Frick, was the fact that Nixon failed to

make the progress payments requiréd under the Contract.

This resulted in repeated requests for moneys owed and a

- series of unkept promises that Frick would be paid. Asa

result, on September 30, 1966 Frick telegraphed Overmyer

‘pointing out that although invoices for progress. payments

through August 31, 1966 ‘‘in the amounts of $148,471 have

been submitted, payment of only $28,969 has been reéeived.”?

A copy of the aforesaid telegram is annexed hereto as Ex-

hibit 2 and annexed hereto as Exhibit 3 is letter dated

October 3, 1966 together with the invoices referred to

therein, which represents a statement of Frick ’s account as

of September 30,1966. —s_ ct :

(8) Green attempted: to further delay payment of the

amounts payable .to Frick as.of September 30, 1966 which

had been guaranteed by Overmyer. This was done by a

claim that the invoice should have been sent to Green’s

_ Toledo office and not to Green’s New York office as was re-

quired by the Contract and as had been done by Frick

without objections in the case of earlier invoices. A copy

. 9

of the mimeographed’ sotise from Green is annexed hereto

as Exhibit 4. Frick complied with such request, as appears

from its letter dated October 7, 1966, copy of which is an-

nexéd hereto as Exhibit 5, but. pointed out the inappropri-

ateness of the procedure followed by Green. When no pay-

ments of the amouiits payable by September’30, 1966 were

received by October 10, 1966, Frick stopped the work on

the project and.gave notice thereof to Green. by letter dated |

' October 10, 1966 whieh is.attached hereto and made a part-

hereof as Exhibit 6. It is to be noted that parts of. the

amounts payable on September 30, 1966 had been payable at

_ dates prior to September 30, 1966. —

‘(9) Asa result of such failure to make aecata in ac-

cordance with the. Contract, Frick filed mechanics liens on —

November 3, 1966 covering the Overmyer warehouse prop-

erty which liens were filed on November 3, 1966 i in a total

amount of $194,031. # ;

(10) Subsequent to the filing of these Tiensj Gratmyars re-

quested Frick to go : forward with the work and Frick agreed

to do this on the basis of Overmyer’s agreement to pay |

- Frick 10%. of the amount owed, ($19,403.10) with the bal-

ance represented by a promissory note payable in 12 equal

’ monthly installments of $15,498.23. Sich Note. was to be

executed by ‘The Overmyer Company, Inc., a New York cor-

” poration, which I believe to be in control of, controlled by,

or under common control with Overmyer. That arrange-

ment was confirmed by letter dated J anuary ‘24, 1967 from.

Frick to Overmyer, a copy of which is annexed hereto as

. Exhibit 7. Overmyer delivered the Note so executed to

‘Frick in a letter dated February 16, 1967 wherein it was

requested that Frick begin ‘‘work immediately * * *.” A

copy of the aforesaid Note is annexed hereto as Exhibit 8

and letter of Febraary 16, 1967 is annexed - hereto as

mekitt 9. :

_ _B. The Completion of the Job by Frick on :

. March 17, 1967 and its Acceptance by ~ \

' Overmyer which under the Contract Preclude.

any Claim for the Alleged Poor Design

or Quality of the Refrigeration System

(11). On March 17, 1967 Frick had performed all of its

work under the Contract and sent to Nixon a “‘notice of |

' completion’’. Attached to this notice is an acceptance exe-

cuted by Overmyer’s general manager in Toledo, on behalf

_ .0f Marion Willis, Overmyer’s Vice President of refrigera-

tion, which states: - f host Be or

‘Gentlemen: - : Pete 3

This is to inform you that your Erector, Mr. Ira C.

_ Coleman. has completed in a satisfactory. manner all -

ae work of supervision and or erection and demonstration —

_ Specified in confract with you dated 2/11/66, and that

the said work as well as the machinery and apparatus

. specified in said contract, is hereby accepted as pér the

contract conditions. _ | 7

. a _. Yours truly,’? a

A copy of this notice of completion and acceptance is.an-

nexed hereto as Exhibit) 10. ; ae | |

(12) The. Contract provides in article 20 of the ‘‘Condi-

tions of Sale’’ that after the machinery: and equipment have

' been installed, then Frick shall notify the Buyer (Nixon) . ;

that.the machinery and equipment ‘‘are ready for demon- — Pi

stration’, Article 20 then provides that after demonstra- :

tion, if the machinery and equipment performs according to

the contract ‘‘and the guarantees if any therein’’ then :

tf 0. Oo

)

“. . . Buyer ts to gwe the Seller am unconditional

- written acceptance which acceptance shall constitute a

waiver by the Buyer of all claims other than those

which may afise from’Seller’s warranty in Articles 1

and 2 of this Agreement.’’ (Italics supplied )

(13) As appears from the Senisiadiins acceptance of the |

‘matienty, and equipment constitutes. a waiver by Over- .

myer of all claims against Frick except such claims as are

ee ere land2 of —

| (14) Article 1 of the Contract warrants siobeian and

equipment manufactured by Frick to be free from defects in

materials and workmanship. Frick assumes the obligation

to repair or replace any defective material manufactured

by Frick f.0.b. its plant after such defective machinery or

equipment had been so returned to its plant. Frick Com-

pany’s warranty with respect to machinery or equipment -’

not manufactured. by it it is. a to the canna of. its own -

suppliers. |

(15) Article 2 ot the contract specifically provides as

follows: |

rdance with the above warranty.

. € r- shall not be liable for any dam-

ages to Buyer or a third person arising out of the

presence of. the installed machinery and equipment on

Buyer’s premises, or out of the use or operation

_ thereof. In no event shall Seller be held liable to Buyer

| for consequential damages. -

None of the warrantieg by the Seller contained ith

- shall be enforceable par ee the Seller if the Buyer shal

default : in making settlement of the’ purchage price

hereunder or any of the payments required tobe made

‘by the Buyer to the Seller hereunder.’? - ;

(16) The foregoing demonstrates that ‘under the Qon--

Frick has no liability on account of the alleged ‘‘poor

design and quality of the system’’, the ground on which a

ae — ina ale ablignttan: te: to. nn

do aliphatic ahi na

warranties.’’? Under no circumstances can Frick be held

rer esr bry nar taps, ar aeT miata oma a

cifications of the.Contract. aa =

(17) It is to be noted that Mr. Weatmeyer’s affidavit (the

basis for the instant motions). does not make any claim

that Frick refused to repgir.or replace any deficient”ma--

terials in accordance with its obligations under the Contract. ae

wore There could be no basis for any such claim. This‘is dem- ;

: onstrated by a letter by Overmyer dated March 6, 1968,

copy of which is annexed hereto as Exhibit 11. As ap-

7 pears from suck letter, as of such date and éleven days

«prior to the expiration of the warranty period (March 17,

1968) Overmyer claimed the sum of $7,566.72 for repairing .

equipment installed by Frick. Such letter does not specify

the equipment on account of which the claim is made and -

‘does not state that such expenses were incurred after

Frick’s refusal to repair or replace the equipment. The

_Glaim therein made.is refuted by Frick’s answer dated

‘March 8, 1968, copy of which is annexed hereto as Exhibit

12.. I am informed and believe that Overmyer never denied

- Frick’s. contention that the amounts'so claimed by Over- ,

myer probably represent expenditures’ incurred in Tewind-_

ing the electrie motors installed by Frick. Such

was necessitated by Overmyer’s insistence that such motors

. .be wired for 440 volts, despite-the fact that the current - |

actually supplied would: be 480 volts. The fact that such

an installation would create difficulties was repeatedly called .

to the attention of Overmyer who, nevertheless, insisted on

440 volt motors. Attached hereto as. Exhibit 12a is copy

‘of ‘letter by me to Overmyer containing my last warning |

m this subject matter. “Certainly the existence of: a

7 $7,506.72 claim (oven if undisptted which it is not) should

c not affect the collection of a $62,370 judgment, :

(18) The claims of poor design, poor quality and failure

to meet specifications are the sheerest afterthought. ‘This

70 Se is demonstrated by the “5a a which was finally en- .

/ +. . tered into between Frick and ermyer—an arrangement

_.\ Which the defendant. is now attempting to repudiate. ..

_ C.After the Installation had been =.

. Completed and- Accepted on March 17,

1967; Overmyer Approached Frick and

_ Asked ‘that it Release the Mechanicg

. Liens ‘Previously Referred to...

* » (19) “After acceptance of thé installation (Paragraph __

~", (11)) discussions were held between Frick and Overmyer

™ which resulted in the following agreement: WS vast:

(a) mores 2 by Overmyer of the installment note in.

_ the-amount of $130,977 and dated June 1, 1967 on which

_ judgment was rendered herein: on: July 12, 1968. This

__, Note required complete payment of the _ outstanding

amounts due to Frick in 21 monthly installments ending

March 1969—two full years after the completion by Frick

‘of the job. As’a result of this arrangement, Overmyer’s

monthly payments to Frick were reduced from $15,498.23

_ to $6,891.85: and the rate ‘of interest on the ‘indebtedness’.

was reduced’ from 64% to 6%; . ye seme

" <->. . (b), The release by Frick of its lien on the Toledo ware-

, ' jhouse; Peete ad sat oo par ia Bite

-,. \/ -(¢) The securing of Overmyer’s -liabilities by. second

“ .°. mortgages ‘on real. estate located. in Hillsboro Ceunty,. _-

:.. FMorida and Jefferson County, Kentucky... Sait. deen

(20) The foregoing arrangement was confirmed by letter

_ from Overmyer’s general counsel dated June 23, 1967, |

-” Gopy. annexed hereto as Exhibit 13, Sie a

_ (21) It was not until October 2, 1967 thiat ithe executed ad

_, original of the’ installment note dated June: 1, 1967 was -

. sent "to Frick together with.(a) check for the installments ..

a of the Note- then due; and. (b) letter from Overmyer’s

an >)

| 39 . @ |

general counsel confirming instrugtions to Overmyer’s local

- attorneys in Tampa and Louisville to record the: second

mortgages ‘*previously agreed upon.’? A copy « ewe

letter is annexed hereto as Exhibit oe

(22) As appears from the foregoing, gi which

} was unable to: meet. its obligations to Frick, succeeded in

" negotiating a very generous extension of time in which —

to pay off its indebtedness. td Frick and in addition, and.

of obvious importance to Overniyer, it obtained from Frick

_ @ release of the lien on the Toledo warehouse. Your de-

ponent is informed and verily believes that Frick, in ac-:

cordance with its agreement with Overmyer, filed a release.

of its mechanics liens on November 3, 1967.

D. Detedaat's 'g Sole Motive for the Instant

Motions is to Further Delay ee.

of Frick’s Just Claim. . ae

(23) The transparent nature of these motions is demon:

strated by the fact that none of the claims asserted in Mr.

Westerimeyer’s affidavit. were -made at the time.

executed the second mortgages and the installment note

on which judgment was rendered herein, six months after

the: installation of the equipment and commencement of

‘- its operation. No claim. was made by Overmyer at that

time that Frick’s installation was done in a negligent man-

ner or was ‘‘of a poor design and quality...” As ap-

pears from Exhibit 14 (letter from. ‘Overmyer dated Octo- -

_ ber 2, 1967) Overmyer’s sole concern was that it obtain

__ an extonsion of time to pay an admitted indebtedness ana, |

agp serpin 9 cern deat gra viheteorseriecrencte

“ite liens.

(24) As appears — Exhibit 11, a ERE claim

- against ‘Frick eleven days prior to the expiration of the

‘warranty period aggregated $7,556.72. I am informed by

Frick and believe that Overmyer was in default of its

obligations under the Note on which judgment was rendered

- herein on June 1, 1968. Accordingly, under the terms of

such Note, Frick’ could have commenced this action and

entered judgment therein’ not later than June 16, 1968.

Thereafter, I am informed and: believe, on June 14, 1968

Overmyer instituted an:action against Frick in the United -

States District Court of New York for an aggregate re-

covery of $132,100 for damages‘ sustained by Overmyer on

account of the installation of: the refrigeration system sub-

stantially for the reasons set ‘forth in Mr. Westmeyer’s

‘affidavit herein. Thus, Overmyer claims in effect that its

‘damages between March 7, 1967 (more than eleven months

after completion of the installation) and the end of the

_. warranty period increased by an amount in excess of

$125,000. I am informed and believe that in connection

with such action, Overmyer obtained a stay in the United

States District Court for the Southern, District of New

York which prevented Frick from enforcing its Note by

the action herein until July 5, 1968 when such stay was

vacated by the same United States District Judge who

had granted it. I am informed and believe that such

. Stay was vacated in part on the basis of an affidavit signed

_ by me which substantially incorporated the facts set forth

and papers annexed to this affidavit, = /

(25) The facts set forth in this affidavit as well as the

timing of the action brought in the United States District

Court clearly demonstrate ‘that Overmyer’s only purpose

in bringing the New ‘York action (which is based sub-

stantially on the same claims as the defenses set forth in

Mr. Westmeyer’s affidavit) was to delay the entry of a

judgment herein which would enable Frick to enforce its .

just claims. In bringing these motions, Overmyer i is clearly

putsuing the same objective With the same insubstantial

and re allegations set up as defenses.

E. Granting the Relief Asked for by

Overmyer on these: Motions will

Gravely Prejudice Frick. —

(26) A stay of execution or an order for a: new trial

will greatly prejudice Frick since it will deprive Frick of

the consideration which it received for twice extending the |

date when the amounts due to plaintiff from defendants‘

became payable. Under the Contract payment of the, con-

. tract price was to be completed 30 days after ‘‘completion

of-all work included and in approval and oon thereof

by the owner and the general contractor . * Since

such work was completed and accepted by the owner on .

March 17, 1967 (Exhibit 10 hereto) payment should-have

. beer’ made not later than April 16, 1967. However, as

‘more fully set forth in paragraph 10 hereof, prior to such

completion, the plaintiff had accommodated the owner by

extending payment of $174,627, 90 of the ‘purchase price.

through March 1, 1967. Thereafter Frick agreed to fur-

ther extend the period for complete payment of its claims |

to a 21 months’ period: following March 1, 1967. This in .

effect reduced. the monthly payments required of Overmyer

from the $15,498.23 required under ‘the February arrange- —

ment to $6,891.85. As.consideration for such extension,

Frick demanded the instant judgment note which entitled —

it to take judgment in the courts of Ohio if Overmyer’ 8

default under the note continued for 15 days. It is this

security of which Frick would be ae if the instant

motions were granted.

. (27) In this connection, " respectfully refer the Court

to Exhibit 6 attached to this affidavit. Such Exhibit is the

notice by Frick dated Octobe 10, 1966 that it was discon-

tinuing work on the installation’ because of the existing

default.in making the payments’ required by the Contract.

‘In paragraph 2 thereof Frick agreed to continue the work >

on payment of ‘‘ . . . $35,000 in cash, provided the balance

can be evidenned by — bearing — notes.’’

(emphasis ours). Thus the ability to enforce its claim

against Overmyer by immediate judgment in case of de-

fault was a condition precedent to the accommodations

given Overmyer and Frick’s willingness to go forward

with completion of the installation without teceiving the

payments provided for under the Contract. Immediate

resort to such security is even more imperative in Frick’s

view by reason of the financial irresponsibility .of Over-

myer shown by the history of its dealings with Frick and

Frick’s belief that Overmyer i is now in financial difficulties

resulting in nonpayment’ of obligations: to other creditors.

(28) There is no allegation in any of the papers in sup-

port of these motions that Frick which has been in busi-

ness since 1853 would be unable to respond to any judg- ©

ment which Overmyer may obtain against it. Accordingly,

denial of the motions can not prejudice Overmyer, par-

ticularly in view of the action ‘which Overmyer chose .to

bring in. the United States District Court in New York,

For the reasons above set forth, I respectfully submit

that the motions made on behalf of the defendants herein

should be denied. :

/s/ iwaie ¥. BURPEE —

Howard F. Burpee

‘Sworn to before a this

29 day of July 1968.

Mary P. Dron ; a

Notary Public, State of New York

Excerpt or Exursrr I—Consrruction Contract BETwEEN

Frick Co., anp Nixon Construction Co., D. H.

Co., Inc.

a“

Anercea 1: Warranty

| _ The Seller warrants, for a period of one year from date |

| of completion machinery and equipment manufactured by

_- ' the Seller to be free from defects in material and workman-

: _ ship when the machinery and equipment has been op-

erated in accordance with the Seller’s recommendations.

The Seller agrees to repair or replace, at’ the Seller’s op-

tion, F.0.B. Waynesboro, Pa., any part .manufactured by

the Seller that in the judgment of the Seller was defective

at the time of shipment provided the part is delivered by

- the Buyer to Frick Company at Waynesboro, Pa., trans-

portation prepaid. The Seller warrants machinery and

equipment furnished -by the Seller but manufactured by

others only to the extent that the Seller can enforce lia-

bility against the manufacturer thereof. The foregoing is .

in lieu of all warranties express or implied.

. Arrictr 2: ‘Setier’s Liwrratioy or LaaBiiiry

The Seller shall not be liable for any losses, damages, or

! delays caused by any defect, except to furnish duplicate _

- _ parts in accordance with the above warranty. Buyer agrees |

5 that Seller shall not be liable for any damages to Buyer or

7 to a third person arising out of the presence of the installed

machinery and equipment on Buyer’s premises or out of

. the use or operation thereof. In no event shall Seller be ©.

. ° held liable to Buyer for consequential damages. otf

None ‘of the warranties by the Seller contained herein *

; _ shall he enforceable against the Seller if the Buyer shall

| ' default in making settlement of the purchase price here-

under or any of the payments required to be made by the. .

‘Buyer to the Seller hereunder. . | .

SPACE FOR INDUSTRY

D. H. OVERMYER C9, INC.

ani nage See BIREET N. Y., N.Y. r. 10017 212 867- 2170

. 2 January 16, a

To: Shh Contactors and Suppliers: of Green & White Con-

struction Company; Inc. and Nixon Construction Co.,

Inc. | |

In past correspondence with you Green & White a a

tion Company, Inc. has advised you of our option to pur-

chase the stock of their corporation and its subsidiary.

We are pleased to advise you at this time that we have de-

cided to exercise our option to purchase the stock of Green

’ _& White Construction Company, Inc. (including its wholly-

owned subsidiary, Nixon Construction Co.,.Inc.) In con- °

nection therewith, we will make a very substantial: cash .

contribution to the capital of Green & White Construction-

Company, Inc.

Very shortly theteatiite Green & White, will be sending y you.

its first check toward the payment of its account with you.

Under this plan, and with our assistance, Green & White

will, in a reasonable period of time, bé able to fully satisfy _

its obligations to you and it is our intention to see that 4

this is accomplished as quickly as possible.

Very truly yours,

D. H. Overmyer Co.,-Ino.

By: D. H. Ovenm YER

° D. . Overmyer, 7

Chairman of ~ Board

EXHIBIT 2

- Telegram, Sept. 30, 1966, Frick Company to.

-D. Overmyer Co. a

‘ WayYNESBORO . :

TELEGRAM § TELEGRAM — | - TELEGRAM.

| ae Waynesboro, Pennsylvania _

September 30, 1966—4:30 p.m.

D. H. Overmyer Co. | .

New York,New York = ~~‘

201 E. 42nd Street he

Att: D. H. Overmyer, President.

As guarantor for payments on the contract. between the

_ Frick Company and the Nixon Construction Company, we ;

call your attention to the following. Invoicés for progress

payments on labor and material thru Aug. 31, 1966, in the.

amounts of $148,471 have been submitted. Payment of

only $28,969 has been received. ‘s

Frick Company. has now substantially cusnniaitn its con-

tract. Absence of power wiring to the compressors as of

400 p.m. today prevents completion of the last step be- |

fore operation which, is ws of: the system with re

frigerant..

Letter, Oct. 3, 1966, Frick Company to“

Nixon Construction Company.

| October 3, 1966

Nixon Construction Company

201 East 42nd Street aa

New York, New York 10017

Re: Your Order 6306 _

Our Order 230046

Gentlemen: gee 8 Ene he

- Our invoice number 609-2310F dated Dsseeiied 30 is en-

_ Closed for $74,529 which represents our final billing under

the above referenced order.

We are enclosing our requisition No. 5 for the month

of September in the mount of $95,001.10. We will look

forward to your ‘aking payment of this amount in ac. .

cordance with the terms of the order.. -__-

' Your remittance i in the amount of $104,654.90 we trust

, will reach us not later than this week so that we may

_ proceed to complete final steps as mentioned in our Mr.

ase 8 telegram of September 29 to ; you. :

Very truly yours,

* Frick Company |

Credit & CoHection Sibistineck

- af |

7 2

EXHIBIT 4 |

GREEN, & WHITE CONSTRUCTION COMPANY

“po Box 1750

GRAND CENTRAL STATION

NEW YORE, N.Y. 10017. |

cae 10/4/66

Gentlemen : | .

We are returning your invoice(s) numbered 609-231 OF. .

It is our policy to return invoices that have been submitted - ay

_ direct to New York. To avoid any ‘unnecessary delay in —

payment, please’ submit thé i invoice(s) to the local branch

office in accordance with our contract number 6306, dated

2/11/66. Vendors name Frick Company. - The invoice(s)

’ will then be approved locally and forwarded to New York °

for payment. ; a

oe | Sincerely, |

Harord Barciay -- ,

Accounts Payable Department 7

- EXHIBIT 5 | a

7 | October 7, 1966.

Nixon Construction Company

c/o Green and-White Construction Company e

302 South Byrne Road 7 ee >

_ Toledo, Ohio = tz . es!

Re: Your 6306 / ;

Our 230046

Gentlemen: |

__ We mailed special delivery to Nixon Construction Com- -

pany, 201 Hast 42nd Street, New York City our letter of

Qctober. 3, 1966 enclosing our -invoice number 609-2310F

dated September 30, 1966 for $74,529 together with our *

48 |

requisition number five dated October 3, 1966 for $95,001.10.

- Our letter with the aforementioned have been returned to

us with a form letter of Green and White Construction

, Company dated October 4. They request that our invoice

and requisition be sent ‘‘to the local, branch office’? as is

“our ‘policy’’. Accordingly we enclose these with this

letter. In doing so we yant to point out that your con-

.gpract number 6306 does n@t specify such a procedure. -Pre-

vious invoices submitted by us were sent to your New .

York City. office and were not returned.

We also want to point out your contract paragraph six,

item A, specifies amounts requested for payment shall be

Submitted not later than the 5th of the month and payable

‘‘thirty days after the date received in the New York City

office’’. .Our requisition number five requesting payment

of $95,001.10 was received by you in New York City before’

the 5th of October 1966. To substantiate this your form

letter is dated October 4; 1966 and the postmark on: the en-

velop returning these papers to us is October 5, 1966.

Therefore, we will expect payment of the. $95,001.10 thirty,

days after October 5, or on November 5, 1966. |

__A copy of this. letter is being sent. to > your New York

City. Office. -

Very wwaly ye veers,

_ Fatcx Company | 5

; Credit & Collection Department

RRLesher:em Se a oe

ec: M, A. Black, Jr,

: Howard Burpee eg

Nis ixon Construction Co -—New York City

7 EXHIBIT6~

Letter, October 10, 1966, Frick Company to ‘@yeen & White

_ Construction Company. ~ be

oe October 10, 1966 tn oy

ies & White Construction Company 7 abe

201 East 42nd Street

New York, N. Y. 10017.

Attention: Mr. O. B. Spence eh a

-.*--Viee President, Special Projects

} Gentlemen: oe ee “ .

Subject: Nixon Construetion Co. Sh vie

For Overmyer Warehouse, Toledo ae

& Frick Order 230046 , :

* This letter will confirm our phone conversations of Fri-

day, October 7, wherein I advised as follows: - 7

1, Our management has directed us to discontinue work

on™ this project unless arrangethents can be made to

| straighten out the past-due payments covered under

the contract.; = = 8 8 - 24 | See

2.-In lieu of actual cash, F; jc Mocipany has indicated

- ' their willingness to accept your offer of $35,000 in

cash, provided the balance can be evidenced by interest-

_ bearing judgment notes. This arrangement would

have to be worked ‘out with our Financial Depart- ‘~

ment, but the has agreed-to this in

- principle. ; — x ep oe

3. Until such time as this tion has been ‘eso

’ the construction. activity has been directed to not con-

_ tinue with the charging of the plant which we ave ready

’o do at this time, and to discontinue alll activities until

‘the problem has been settled. ,

.% | ‘We die. that you will. _understatid the necessity for -

doing this and that some-'metliod’ can be worked out

mptly for a restart of the job.

——e

a a a 2?

eae Very truly yours,

oK CoMPANY

oO - W.F.Saervern © —-

WFS:MRD ?». “Chief Engineer .

- co—HF Burpee, EWForth, “>- . - ee

@Frank,TMGlen, 9° \

| Ae TPSanders-

oe ae EXHIBIT 7

etter, Jan. 24, 1967, Frick en to

| The Overmyer Company, Inc.

January 24, 1967 aes

Mr. Frank Lake, Treasurer

‘The Overmyer Company, Inc.

201 BE. 42nd Street - :

“Mew York, N. ¥2 10017,

Re: Frick Company—Nixon. Construction Co.

Contract dated February 11, 1966

Frick Order 230046 «"

. Nixon Reference—J ob 0427. 71

; Dear. Mr. Lake: . .

. Pursnant to the conversation deiween Mr. E. W. “Foith, :

. President of Frick Company, and Mr. Robinson, President

of ‘The Overmyer Co., Inc., I*am forwarding herewith

a Note to be ciseated by. + The Overmyer Company, ‘Inc. '

It is my understanding that The Overmyer Co., Inc.

agrees to pay. Frick Company 10% of the present ‘aitount

($194,031.00) due Frick Company, namely $19,403.10, and -

the balance payable at 642% interest per annum in 12 equal *

installments of $15,498.23. Pi oc i hie Note i is drawn

Ors : = 51 |

only on the balance of $174,627.90 plus interest of $11,350.81

for a total of $185,978. ibe Payable in 12 ante of -

_ $15,498.23 each. ,

CSS if. the Note is in selileciiae with your understanding

of the agreement reached between Messrs. Robinson and

Forth, please have the attached Note executed,by the Pres-

ident of The Overmyer Co., Inc., attested to ty the Secre-

tary and the corporate seal impressed thereon and return :

the executed Note to Frick Company, attention the writer,

together with The Overmyer Co., Inc. check in the amount

' of $19,403.10. Upon execution of the Note, kindly: insert

the date of such execution ‘where indicated at the top of

the Note. When Frick Company receives the properly _

" executed Note and down payment check, we shall immedi-

ately undertake steps to place the 0 refrigerating: sree in

operative condition. |

‘Very truly yours,

Frick ComPary

a ae oe ee Arthor Frederick *

AF AIGC ~ - Counsel

| EXHIBITS. ae

Note, The Overmyer Company, Inc., to Frick , Company

‘For. Vatu Recrevep, THE OvERMYER Company, ‘Inc, a

‘New York Corporation, (herein called Maker’), with its

principal office at 201 East 42nd Street, New=York,. N.Y., .

promises to jday to Farcx ComPary, a Pennsylvania Cor-’

poration, (herein called ‘‘Payee’’), at its office in Waynes-

boro, Pennsylvania, One Hundred and Seventy-Four Thou-

_ sand Six Hundred and Twenty-Seven Dollars and ‘Ninety

~ Cents ($174,627.90), with interest at six and one-half per-

cent (62%) per afinum, said principal and interest to be

paid in twelve (12) equal successive monthly installments _

of Fifteen Thousand Four Hundred and Ninety-Kight Dol-

lars and ‘Twenty-Three Cents ($15 ,498.23), beginning March *

1, 1967, and on the same day of each month until paid.

e — *

The Maker hereby waives —— demand, notice -

wa protest of this Note.

On the performance of any of the promises or yr agreements

herein, or on the appointment of a receiver of the Maker.

or its properties, or the filing of a petition by or against ;

the Maker under the Bankruptcy Act of the United States,

or on the nonpayment of any of the indebtedness or liability

aforesaid, the entire unpaid balance of the Note shall be-

come due forthwith at the option of Payee, byt.without de- . °

‘mand or notice; or on the insolvency, generat assignment,

or appointment of 4 receiver of the company, or its prop-

erties, the entire unpaid balance of this Note shall hecome

due. forthwith and ipso facto without demand. or notice.

_ it is expressly understood and. agréed that this Note

shall not operate as or be construed to be a waiver of the

mechanics lien heretofore filed by the Payee for work per-

formed by Payee for Nixon Construction Company under —

a contract dated February 11, 1966; and shall continue in

‘ full force as though this Note had not been given. How- *

ever, it is expressly understood and agreed that the payee

will forego-enforcement of their lien rights and any other

-legal remedies so long as there is no — under this

Note.

Ix Wrrnzss Tues: the said Maker has oiihed this

Note to be’ executed by its officers thereunto duly author-

ized and directed by a resolution of its Board of Directors

duly passed and adopted by a majority of said Board at a

meeting thereof duly called, noticed and. held.

e " (ae Ovenmver Coéurany, Ino.

~~~ By: Frank J. Lake

ATTEsT: | : ‘Treas.

_E.M.Connery — |

Secretary a _

(Corporate Seal) iy

fry

EXHIBIT 9.

“A etter, Feb. 1967, Frank J. Lake t to Frick ‘Domina:

THE OVERMYER COMPANY, INC...

New York, N. Y. 1001%_ |

“ | February 16, 1967 .

Mr. Arthur Frederick .

Counsel | |

Frick Company —

Waynesboro, Pa.

Dear Mr. Frederick:

Enclosed is the Note which you sent us as amended. per |

-your. conversation with Mr. Oonnery. Also “enclosed is

our check for the payment due at this time.

; “We will very ‘much. appreciate your begi nning week im- —

_mediately in that we have an _ Gme — at the

Toledo warehouse.

‘2 ; Sincerely,

“FJ L:ram

Encls. _ * . ay 4

7 -_ na 2-17-67

Hand cacviod this check & note to Bob Lesher. this date.

~ [Initials]

_——- :

- . 3) EXHIBITIO0. = +

Notice of Completion and ‘Adeeiptance, ‘March iis 1967.

FRICK COMPANY

3 NOTICE OF COMPLETION

B/lT/6t

Nixon Const. Co —Overthyer Warehouse Co. ’* .

Toledo, Ohio a |

Gentleman:

*I have this day completed all: work .of supervision and

or gereetion and (demonstration) of the® machinery and

equipment specified in, contract with you dated 2/11/66, —

* and respectfully request acceptance of the’said machinery

an —- as per the contract conditions.

— Yours truly, .

Ira C. Coleman

Erector

Technical ‘Services

“Frick Company, ae . “

Waynesboro, Pa.

| Gentleman:

This is to inform you tat your Erector, Mr. Ira C.

Coleman has completed in a satisfactory manner all work

of supervision and or erection and demonstration

in contract with you datéh 2/11/66, an t the said

work as well as the machinery and apparatus specified in

said contract, is hereby on as per the contract con-

* ditions.

Yours traly,

pee Gree Marion Willis, V. P. Refrigeration

By William ¥W, Byron, Gen. Mgr., Toledo

——

\. Arthur Frederick, eq,

Frick Company _

—er - 3.

“55 eS |

| EXHIBIT H+

- (THE OVERMYER COMPANY, INO.

- 201 East 42nd Street - New York, oe f 10017 - 212 867-2170

‘David V. Douthit . U7

Administrative Assistant to the President

March 6, 1968

Waynesboro, Pennsylvania

Dear Mr. Frederick: :

As of this date the D. H. (Overmyer Co,, Tne. sil baeieted

expenses in the amount of $7 706. 72 to repair the equipment

that Frick Company installed in our Toledo cold Soe

warehouse.

Frick Company is the holder of a ‘tte jesued by. the D. H :

Overmyer Co., Inc. in the original amount of $130,977.

I wish to < deduct this $7,556.72 from ‘the | note payments. ©

“TeIdo not hear from-you by return mail prior to March

31, 1968, I will aesume that you agree with me on the above

and I will deduct it from: the payments on the note.

co , _ Cordially, |

| ' Davp V. Dovrarr

"David V. Douthit

Registered Mail

PriA

-56 7 |

EXHIBIT 12

. FRICK COMPANY

Waynesboro, Pa. 17268

March 8, 1968 |

a acre TIT. 762-2121.

, : | QABLB: FRICK

° a

Mr. David V. “Douthit, hae : ;

Administrative Assistant to the President ;

_ The Overmyer Company, Inc.’ ' et, 2 ws

201 Hast 42nd Street rs are a

= New York, N. Y. 10017 2

| Dear Mr. Douthit :

ve "Reference i is made to your letter of March 6, 1968. tiate-

in you aséert a claim against Frick Company i in the amount /

of. $7,556.72 for alleged repair. of equipment installed by | f

__ Company at your Toledo cold storage warehouse. . a -

First and foremost, the Frick Company will nist agree to

the deduction of this alleged $7,556.72 from the payments .

due under the original note in the amount of $130,977. 00.

Nf - Since you have made no attempt to, substantiéte the ©

claimed expenditures, it is difficult for us to determine the .

: existence of Frick’s liabjlity. This amount probably, in-

cludes expenditures incurred in rewinding motors, the lia-.

_-bility for which: was denied by Frick Company in a letter

- dated December 1, 1967 and sent to Mr. Daniel Fitzgerald.

In addition, Frick Company has requested payment of

$5,725.94 for extras incurred by Frick in connection with —

. the Toledo: cold storage warehouse’ installation. A full.

discussion of this claim for extras ‘was. set forth by the:

writer in a letter to Mr. Robinson dated February 12, 1968.

7 f

. . A

. : rans — dale

. oo

. Pg co

57 =

’ ae

Th view of the foregoing, it is quite obvious that Frick

: Company cannot agree ‘to your proposal. Any default in

payment of the~itistalment note _ result in —

_ legal. irae for collection.

, a" ta Cordially, * 2

po .--. .. Frick Company |

eg nS Agruun FReperniok © =

| Arthur Frederick ©.

a — - Counsel, a ar

AF :HGC a 7 -

ole) R. W. Robinson, ] President - po , pat eo

| Certified Mail = fe ig a

Blind copies—P. F. iia aici : . ae

- R.R. Lesher — | a %

NP. Whitney |

Refrigeration & Air Conditioning - Forest &Farm

a D. H. Overmyer

so 88 .

meron ina’ '@

101 Park Avenue 2

New York, N..¥. 10017

~ Telephone MU 5.0511

June 13, 1966 >

Nixon Construction Co. .

_ 201 East 42nd Street

New York 10017, N. Y.

Subject: Refrigeration-Toledo 7 |

"Frick #290046 ae

| Att: Mr. David E. Clarke | |

Gentlemen: a ae

The Frick Company has | again suggested that I call your

' attention‘to the fact that Toledo Edison is on ‘record with _— -

a statement that they will furnish 480 volts.

The motor manufacturer has’ taken the: position ‘that the

440 volt motors will not be covered by a one — warrafity :

if 480. volts are supplied. = =. s

This point is covered in Article 1—page 10 of the contract, aa

“The Seller warrants machinery and equipment manu-

_ factured by others only to the extent that the.Seller — .

can enforce liability against the manufacturer there+ |

of.”?

Please aceon my spolsey for being repititions, but r (a6:

sure you I will not mention the matter again.

Very truly -yours, © -

FRICK COMPANY |

"saab - Howanp F: Bunrzs

HFB ob oe 7

‘Refrigeration ¢ Aw Conditioning-Forest & Faw

| macnrnre oo

ar ©.

59. - ae ghee ae.

; EXHIBIT 13. |

~ Latter, June 23, 1967, D. H. . Overmyer 0o., Tne, ;

| : to. Frick. Company, = ©

'D. H. OVERMYER 00.; INC.

pe On i ae | a

| sae ; Tune 23, 1967

Arthur Frederick, Esq. at JF _-

- Counsel ;

Frick Company. : baer

Waynesboro, Pennayivanis 17969 °

‘Deir Mr. Frederick: rae Peers

I have been informed that a ttle (of your client*s

t our comPany has been negotiated between

4 Forth, President of Frick Company and ae perser- is?

President of D. H. Overmyer Co., Inc.

TI am @nelosing’ an Installment Note i in “the ‘setntioal

_ amount of $130,970.94. This Note will be amortized’ over

‘21 months with thé First Installment on June 1, 1967. It ©

has been executed by our Ohio parent corporation, the Ohio |

, State. ‘corporation, D. H. — and Shirley Cc. Ovee- “7 :

myer.

“We shell easoute sai weal aasoud. wictligigis' oui a. me

Tampa and a Louisville: site in order to secure this Note.

_ I have instwicted our local attorneys i in both cities to -

_ (prepare second = instruments and to order : a title’

_ binder.

EXHIBIT 14 rg ot Oe

: ; Letter, Oct. 2, 1967, The Guise Company, Ine: » to the

Frick Company. -

THE OVERMYER COMPANY, IN: C,

New w York, N.Y. 10017

oe. _ " . . October 2, 1967

Arthur Frederick, Esq. aes

‘Frick Company - ,

-Waynesbgré, Pennsylvania |

_ Re: Installment Note a

’ Dear Mr. Frederick: | | _ °

In Mr. Cassidy’s absence, I am forwarding to you the

executed original of our Installment Note dated June 1,.

1967, in the amount of $130,977.00 together with five cheoks

- in satisfaction of the. preliminary obligation a aad bo,

; Frick Company as follows:

Date ‘Check.No. ~~. Amoumt

~ 8/31/67 - 3103 - $6,891.85

8/31/67 . 3104 6,891.85

8/31/67 | 310 - ~——s «6,891.85. -

* 8/31/67 - 8106 °°. 6,891.85, .

10/1/67 3235 6, 891. 85

I am savin our loeal aitoraaye in Tampa and Louis-

ville by copy of this letter to record the second mortgages

previously agreed upon between you and Mr.. Cassidy and

which they now have in their possession.

_ I would ask that you have your corresponding attor-

néy in Toledo to proceed to discharge the three Affidavits

of Lien filed against our Toledo Cold Storage Facility.

I trust all the’above is in accordance with the arrange-

- ments made between yourself and Mr. Cassidy on behalf

.- 7 ° : .

‘ : .

> : .

woes REAR YE RE . ~

. see . er bag ites tn

rs)

| J 7

3 61 3

of this company. Please advise if there is anything fur-

ther I can do. 7

Your very truly,

Edmund M. Connery. *» —

_ Secretary & General Counsel a

EMC:ti es

cc: Thomas W. Bullitt, b Bea, ~

_. . Edward Kohrs, Esq.

| - THE COURT OF COMMON #LRAS-OF LUCAS county, OHIO

No. 204697 |

| Atfidavit of Paul C. Guth

~ led: August 15, 1968)

e * * = oa ™S _* =) e ‘@ .

-¢ rate or New York -pa.: . . oes

County or New York

Pavi C. Gur, being duly ‘sybrn, deposes and says that:

(1). Tama member of the firm of Lauterstein & Lauter-

stein, 30 East 42nd Street, New York, New York, attorneys

_ for the plaintiff Frick Company herein.

(2) At the request of Shumaker, Loop & Kendrick, at-

torneys for the plaintiff herein, I obtained a certified copy

of the complaint of defendant D. H. Overmyer Co., Inc., an

Ohio corporation in-an action which was instituted by said

Ohio corporation ‘against our client Frick Company in the |

United States District Court for the Southern District of \

New York. Such action bears number 68 Civ. 2262 and is

more fully described in paragraph (5) of my earlier affida-

vit-verified J aly 29, 1968 =erpverote filed or to. be filed were.

‘in.

(3) I obtained such certified copy so sent’ t'to Ohio. coun-

sel aigid instructing the managing clerk of our office to Pro-

—

“ 62

ceed to the United States District Court for the Southern ,

* District of New York and obtain the Sprronrie’e certi-

_ fication on a copy of the complaint.

(4) Subsequently, the managing clerk of our - office handed

-tne such certified copy which was then forwarded, by me

to Ohio counsel. ;

(5) At the time I received: such certified copy from the

”- managing clerk, he advised me that the certification had

been done by an official in the office of the Clerk of the

Court after arrangements had been made to obtain the orig-. .

inal complaint filed in the Court from the office of Judge

Mansfield, a Judge of said Court where the entire file of

_ said case is presently held-in connection with his disposi-

_. tion of the motion more fully described in ra earlier af-

fidavit.

(6) Such certification is made in ee name of John J.

Olear as Clerk of the United States District Court for the

Southern District of New York by one of his deputies.

. ° (7) Said John J. Olear is listed as ‘‘Clerk of Court”? in i

. the ‘section ‘‘United States District. Court Southern Dis-

trict’’ in the official directory of the City of New York for

the year 1967. I have also seen the name of John J. Olear

listed as Clerk of the Court on various directories in the

* “United States Court House, Foley Square, New York. Ac-

cordingly, I believe said John J. Olear to be thé”Clerk of

the United States District Court for the Southern District ;

of New York. : |

; | Paul C. Guth

Sworn to before me this 6th day of August, 1966.

| Mary. r. Dillon . .

Notary Public, State of New York

No. 44-6035100

Qualified in Rockland County .

_ Certificate filed with N.Y. Co. Clerk

Commission Expires March 30, 1970

| 63

. Exhibit to Paul C. Guth Adidavit '®

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF. ;

NEW YORK

= No. 68 Civ. 2262

" e i coe) e-* e . * ag e

Plaintiffs, Nixon Construction Co., Inc., and D. H. Over-

myer Co., Inc., by their attorney, complaining of the de-

fendant, Frick Company, show this court — allege, on in-

formation and belief:

Asamp pon A Frnsr Couns

1. Plaintiff, Nixon Construction Co., Inc., is a corpora-

_ tion, incorporated under the laws of the State of Florida,

3s licensed to conduct and transact business in the State

- of New York, and maintains its office and. principal place

for the transaction of its business in the on of New

York, State of New York. oY

2. Plaintiff, ’D. i. Onauyer ‘Co., Ine., is a co‘poration,

incorporated under the laws of the State of Ohio, is li-

censed to conduct and-transact business in the Stafe of

_ New York, and maintains its office and principal place for .-

the transaction of its business in the mer of New York, oe

State of New York. ;

3. Defendant is a corporation, incorpo under - the. 3

and principal place, for the transaction. of its business i in

the State of Pennsylvania.

_ 4 The amount in controversy in 1 this cause sesbaas the

sum of ten thousand ($10, ae dollars, =e of in-.

terest and costs: — yon

5. Plaintiff, D. H. Overmyer Co., Ine. was, at all times

hereinafter mentioned, the owner of premises located’ at

3630 South Street, Toledo, Ohio, hereinafter designated : as

Toledo Site #3:

rer... ~ - . . . ~ ~- eA EIEN

~. laws of the State of Pennsylvania and maintains its office. we

; |

6. Plaintiff, Nixon. Construction Co., Inc., was, af all

times hereinafter mentioned, the General Contractor en-

gaged by plaintiff, D. H. Overmyer Co., Inc., to construct

a cold storage warehouse on plaintiff’s premises designated .

in paragraph #5 hereof as Toledo Site #3. | :

-. % On or about the 11th day of February, 1966, plain-

tiff, Nixon Construction Co., Inc., and defendant, entered

into a contract No. 6306 at the principal office of plaintiff

in the City of New York, State of New York, whereby de

fondant was engaged to perform certain work, labor, serv-

ices' and td furnish materials, equipment and machinery

necessary for the construction of a complete automatic re-

frigeration system to be installed at the premises desig-

nated herein as Toledo Site #3. Copy of the aforesaid’

contract is annexed hereto, made a part hereof, and marked

Exhibit A. -

8. Plaintiffs have duly performed all the conditions of

‘ guch contract on their part. - :

9. Defendant breached the aforesaid contract in that it

performed its services in such an incompetent, negligent

‘and unworkmanlike manner, and in-that-it supplied ma-

terials and-machinery of such poor design and quality that

plaintiffs were required and compelled to engage, and did —

in fact engage, other contractors to repair the defects exist- _

ing therein, which defects existed solely because of the

negligent work, design, and defective materials a oa

“by defendant, as aforesaid. .

10. By reason of the foregoing facts, plaintiffs have been

damaged in the sum of Twenty-six Thousand _ Hun-

dred ($26,800.00) Dollars, —

AS AND FOR A —— Count:

-1L The allegations contained in paragraphs 1 through

9 inclusive are heréby repeated and realleged with the |

same force and’ effect as though here set forth in full. . ~

, 12. The equipment and materials designed, fabricated

and supplied by defendant, as aforesaid, were to have con-

> .

PUA Rated lt sil aa8

ay 65 wa

stituted a sonielihate satqnemous and. automatic refsigers ‘

tion system. .

. 18, Because of defendant's cca negligeft, ue

unsatisfactory design and workmanship, and because de-

fendant designed, fabricated and/or supplied equipment &

materials unsuitable and inadequate to meet the demands

of the contract, as aforesaid, the system, as aforesaid, or

integral and essential parts thereof, repeatedly broke down

and became inoperative.

14. Due to the facts as afcrethenfioned- i in sanaenl

13 hereof, plaintiff was compelled and required to, and did

in fact, hire, engage and employ additional qualified per-

sonnel to tend, maintain; and control the system at all times. ,

15. By reason of the foregoing facte, plaintiff has been

damaged in the sum of Nine Thousand ($9,000. 00) Dol- -

lars.

EPS

ee | ‘As axp ron a Tum Cousr aes

16. The allegations, contained-in paragraphs 1 he 1 through

--9 and paragraphs 11 through 14 inclusive are hereby re-.

peated and realleged with the same force and effect as

though here set forth in full.

' 17. In and by the aforesaid agreement, a copy of which

is annexed hereto, it was provided that the said refrigera-

_tion system was to be ready for demonstration and final

acceptance on ‘or about August 15, 1966, and the com- >

_ pletion of the said work on or before that date was expressly

made a condition of the said agreement and a part of the

forth therein. - |

18. The defendant catered upon the performance of the

work under the said agreement, and had wholly and totally

failed and neglected to complete the said work in the time

specified i in the said contract for the completion thereof.

_ 19. By, reason of defendant’s failure to complete the

said work within the time: ania in the said contract, —

a °

plaintiff was faa to have the same ‘eiepiolnd 80 as ‘to

go into possession thereof, and to have the same eerie

as a public cold storage warehouse.

"20. By reason of the foregoing facts, plaintiff has teen

damaged in the.sum of Fifty Thousand, Five Hundred

5 ($50,500.00) Dollars. ars

As AND FOR A Fourra Count -

a1. The allegations contained iri paragraphs 1 through

- 9, paragraphs 11 through 14, and paragraphs 16 through

- 19 inclusive are hereby repeated and realleged with the

same force and effect as’ though here set forth in full

22. Among other things, the defendant guar teed and

warranted that, for a period as set forth in said contract, —

.. the machinery and equipment manufactured by-it and sup-

’ plied by it would be free from defects in material and work-

. manship, and that the machinery specified therein would

‘hold a temperature of minus 10 degrées F. to within the

its of standard temperature controls. .

23. The said refrigeration system installed by defend-

~ ant was: not free from defects in material and workmanship

and was totally inadequate for the purposes for which it

was installed. .

9& Within the period set forth in‘ the contract sntieeed

hereto, and upon ascertaining that the said equipment was

' defective and inadequate, plaintiff demanded of defendant

that he make such repairs and changes ‘in the refrigeration

_ system as were required to comply with the provisions of-

the said agreement and warranty, and the said defendant —

‘ wholly failed, neglected and refused to take such remedial

steps, as required, and still so fails, neglects and refuses.

25. Upon the failure, neglect and refusal of the defend- =

ant to complete the aforesaid contract and warranty, plain-

tiff was compelled to, and did, cause the said refrigeration

system to be put in a proper condition so that it would -

| comnly with the aforesaid contract and warranty.

acon ot ila adi ail tad iie seis Mit atte bat

Ct iy ere pete

e 67 a ‘ .

26. Prior to ascertaining that the eaid refrigeration sys-

fem did not comply with the provisions of the said con-

tract and warranty, and while plaintiffe were ignorant of

. stich facts, they paid to the defendant the-sum of Two

Hundred Twenty-three Thousand and Six ($223,006.) Dol-

lars, the total amount which they were required to pay to

the defendant under the aforesaid contract, i in the form of

cash and installment note: ——

27. By reason of the foregoing facte, vlainiife has been ~~

. damaged in the sum of Kighty-six Thousand, Three Hun-

«dred ($86,300.00) Dollars.

mz,

Wuenerorz, plaintiff demands judgment — the de- -

fendant:

(1) On the First Count in the sum of Twenty-six> Thou:

- gand, Eight Hundred ($26,800.00) Dollars, together with in-

terest from the 1st day of March, 1967; — |

(2) On the S ie Count in the sum of Nine Thousand

. ($9,000.00) Do together with interest from the Ist day -

_of March, 1967 ;

(3) On the Third Count § in the sum of Fifty Thousand,

Five Hundred ($50,500.00). Dollare,-together with interest

froin the lst day of March, 1967;

(4) On the Fourth Count in the-sum of Eighty-six. Thou-

sand, Three Hundred ($86,300.00) ‘Dollars, “——, wi

interest from the Ist day of “March, 1967 ;

aes

. (5) For costs and disbursements of this action.

' - Joun P. Garnican

& John P. Garrigan

Attorney for Plaintiff -

Office and P.O. Address

e 201 East 42nd Street

ge te 4 Suite 400

Le _ , New York, } New York 10017

_ IN THE COURT OF COMMON PLEAS OF LUCAS COUNTY, OHIO

No. 204697 . |

Affidavit of Paul C. Guth

“( (Filed: August 15, 1968)

Stats or New Yore a

. County.or New Yorr =

Pau C. Guta, being duly sworn, deposes and says that:

~ (1) Iam a member of the firm of Lauterstein & Lauter- °

stein, New York .attorneys for the plaintiff Frick herein. ~

By reason of the premises, I am familiar with the matters

‘hereinafter set forth. This affidavit is submitted in op-

position to a motion in this Court to stay the execution of

a certain judgment obtained by plaintiff Frick Company

(hereinafter ‘‘Frick’’) against one of the defendants herein

and for a new trial in the instant action. |

(2) I am informed and believe that this action was .

_ commenced on July 12, 1968 for judgment in the amount

of $62,370., together with appropriate interest and costs .

by reason of the default of defendant to pay the remain-

ing balance on a note (herejnafter the “Note’’) in the |

_ original amount of $130,977... Such note, among other,

‘ things, authorized any attorney designated by Frick to“~ as

appear in an Ohio Court, waive issuance and service. of

- process and confess judgment in the event that. the makers

of such note made default in payment of any installment

thereof required thereunder and such default remained _,

uncured for a period of 15 days. On the basis‘of the plead-

ings herein, I am informed and believe judgment was .

. rendered ‘by this Court in favor of Frick and against de-

fendants for the sum of $62,370 with interest. and costs

‘on July 12, 1968. Such gulgment * was eateree and docketed

the sameday. —=s

(3) The: instant motions are directed seninat the execu-

tion of such judgment and for a@ new aia

DI em erystns ae ts Ueto

69 | =

(4) Such motions are supported by an affidavit by Joseph

W. Westmeyer,; Jr., Esq., verified July 22, 1968. In such -

affidavit Mr. Westmeyer concedes that the judgment herein' )

- was entered by virtue of a warrant of attorney; that the

'- ' Note upon which such judgment. was entered represented

the contract price for the installation of a refrigeration

system in a warehouse building in Tolede, Ohidfowned ‘by

D. H. Overmyer Co., Inc. (hereinafter “Overmyer’’) one |

of the defendants herein ; and alleges ‘‘that defqgiants

will present evidence that plaintiff furnished and installed

a refrigeration: system of poor design and quality which.

did not meet the specifications of the contract and that the -

warranties given by plaintiff in connection with the con-

tract for the installation of said equipment was breached ;’?

Mr. Westmeyer’s affidavit, does not contain any factual 7

details or incorporate ‘any correspondence or other papers.

to which this Court could refer in assessing the likeli

'. of Overmyer’s success if a motion for. a new trial was

granted; nor does Mr. Westmeyer set forth any facts indi-—

cating financial irresponsibility:on the part of Frick which

would prevent the recovery of any amounts to which Over-

myer might ultimately be adjudged to be entitled against

Frick in this or any other action. It is also to be. noted’

that Mr. Westmeyer does not express any belief that

his client will ‘ultimately succeed but rad swears that

-his client will ‘‘present evidence’,

(5). The claims set forth in such barebone: fashion in -

Mr. Westmeyer’s affidavit are already the subject of an

action which was brought among others by Overmyer as

plaintiff against Frick in the United States District Court -

for the Southern District of New York.- Such action bears

number 68 Civ. 2262. Service of summons ‘and complaint

therein was made upon Frick on June 14, 1968. Such

| complaint contains three causes of action which are based

on wrongdoings by: Frick substantially characterized by

the portions of Mr. Westmeyer’s affidavit hereinabove set

. 70

forth with demands for damages gating $132,100. -

‘My firm is acting as attorneys for roma in the afore-—

mentioned action’in the United States District Court ‘for

the. Southern District of Now. York. -,!

’

(6) After the sacu aeaaat of such action in the

United States District Court of New York (herejnafter the

“New. York action’’), Overmyer. brought a motion to en-

‘join. Frick .from enforeing - ‘the Note during the pendericy

of the New York action. Such motion was brought on

by an order to show cause signed by the Hon. Marvin E.

_ Frankelya Judge of the United States District Court. The -.

order to show cause contained a temporary. stay of all

| proteedings by Frick to enforce the Note pending a de-.

cision of the motton for a temporary injunction. |

| ‘The order to show cause was based on an affidavit by .

John P..Garrigan, Esq., sworn to Jurie 19, 1968 which ‘is .

attached hereto and made a part hereof as Exhibit A and

aememorandum ‘attached ‘hereto and made a part hereof

as Exhibit B. ‘ ‘

- (7) On the return date of the pee to show. cause s June _

‘ 24, 1968, Frick served a factual affidavit’ in opposition to

the motion together with a brief setting forth the points on

which; it relied in such opposition. Overmyer answered: the

calendar call ‘*Ready’” without submitting any further -

‘papers in support of its motion. . Subsequent. to the cal-

endar call-the motion was adjourned first to July 2, 1968

_ and ‘subsequently to July-16, July 23, 1968 and July 24,

1968 when Overmyer’s motion was ‘finally ‘argued before

the Hon. Walter E..Mansfield a United States District

Court Judge. It is to be noted that Overmyer still sub-

mifted the case-to Judge Mansfield on the basis of the

, papers which it’ had submitted itt “—" of the order. to

show cause.

a -

(8) Risintnstion of! of Mr. Garrigan’s affidavit (Exhibit A)

will indieate that ~ only reference to, the ‘merit of Over- .

BR. -

gg Tt ee a |

myer’s ‘iia aghinst Frick is contained i in paragraph Bixth

thereof, which states as follows: ~

«The Complaint of the Plaintiffs alleged in sub-

stance that the Defendant breached a contract by| — —_

negligen performing work upon ‘premises of the:

.. Phaintiffd and that as a result thereof the Plaintiffs

. have systained those injuries and damages as alleged,

_ in the Complaint in the total’ sum of $172,600.” *

(9) Examination of the complaint will indicate: that i

contains the most general allegatiqns as to Frick’s wrong-

doings on which Overmyer’s claims are based permitted.

_by ‘notice pleading’’ under the Federal Rules of Civil -

Procedure. Even those allegations are Made on ‘‘informa- .

tion and belief.”? Paragraphs Ninth end Tenth 6f the

complaint with, respect to the wrongs done by Frick and‘ -

the damages sustained by Overmyer fairly represent the

‘substance of all the allegations as to wrongdoings and

damages contained in the other causes of action. Such

‘paragraphs read as follows: “.

“§ Defendant breached the aforeltsid seatenet | in -.

that it performed its services’ in such an incompetent |

negligent and. unworkmanlike manner, and in that it

+ gupplied materials and machinery of such poor design

a4 pelled to engage, and did ‘in fact. engage, other con-

tractors ‘to repair the defects existing therein, which

defects existed solely because of the negligent work, -

| design, arid defective materials — by a”

‘as aforesaid.” — .

apie By reason of the foregoing heitie: plaintiffs bare:

- been ‘in the sum of Twenty-six’ Thousand

. Bight Hundred ($26,800.00) Dollars.”’ : ie

(10) ‘Immediately after the adjournment of the motion

Stor a temporary injunction on July 2, 1968, I made. appli-

cation to Judge Frankel for a vacatur of his stay pending

~ the decision. e! the motion for a temporary injunction. —

¢ 4.

72 : oy

" Judge Frankel heard Frick ’s application in Chambers on

July. 5; 1968 in the presence of Mr. Garrigan, Overmyer’s

_ counsel. At the outset of the hearing Judge Frankel -stated

that the file before him was obviously incomplete since he —

did not.see any of Overmyer’s papers on which it based

its motion for a-temporary injunction. | "

Mr. Garrigah then referred to Exhibits A: and B which

Judge Frankel held in his hand at the time. .

Judge Frankel expressed some astonishment that Mr.

Garrigan was willing to rely on such papers in a motion

for a temporary injunction. J udge Frankel ‘then stated

_ that the. Overmyer papers did not contain any factual

basis on which relief could be granted and that the Frick

papers showed Overmyers claims to be without merit. The

Judge then vacated the stay. The Frick papers referred

_ ‘to by Judge Frankel substantially embodied the materials | .

incorporated in the affidavit of Howard F. Burpee sub-

mitted simultaneously herewith. Soa :

In further discussion with Mr. Garrigan, Judge Frankel

also stated that he felt that in view. of the fact that he had

initiated this motion by his order to show cause and had

F carefully studied all the documents, it would be in the

interest of economy of time for him‘to deny the motion for

a temporary injunction since it would obviously fail.

_ Mr. Garrigan objected to such denial on the ground that

another judge of the United States. District Court who

was presiding over the motion term on July 16 (the date

fo which the motion had been adjourned) had jurisdiction

over the ‘motion and that J udge Frankel had no such juris-.

~ diction. - : Lo. ; .

- Judge Frankel did not press this point. However, he

did observe that the motion would be moot in any event

by the time it was heard since Frick would have entered

: its Judgment in Ohio by then. Judge Frankel then struck

. the provisions for the temporary stay.from the original

order to show cause and also signed an order vacating it,

“a copy of. which 2 anes to this affidavit as Exhibit C..

tt Dri nie =

Tree SERRE

‘eo

(11), I have prepared or read all the papers submitted by

our firm on behalf of Frick in this matter, and I can state

unequivocally. that all of our. affidavits and briefs have

stressed and emphasized the absence of any factual support

for Overmyer’s claim and it is to be contradicted by the - - :

paperg annexed to the Burpee affidavit filed herein. —

(12) Overmyer was served with our first papers on June

-24, 1968 and the last such paper, was served on Overmyer

on July 3, 1968. ,

(13) Despite the above contentions of Frick so often

reiteratéd in their de facto judicial endorsement by Judge

Fftmkel, Overmyer chose to submit its case before Judge

Mansfield on July 24’on the same unsupported and general

allegations of Frick’s wrongdoings. I submit that this

tenacity can only be the result of necessity, ie. the in-

ability of Overmyer’s learned and skillful attorneys - to

dredgé up from Overmyer’s file any evidence of wrong-

doings by Frick which would enable: them te make. their

claim more specific. : 7

(14) The facts and documents wk forth or incorporated

in the Burpee affidavit as well as the history of the mo-

' tion of the New York action recited above clearly demon-

strate that the instant motions are only a jast ditch attempt

by ee to avoid the payment of its lawful Gobte.

/s/ Pau. C. Guta

Sworn to before me this

29 day of. July, 1968.

No. 44-635120.

Notary -Public, State of Ta York

Qualified in Rockland County “

- Certificate filed with N. Y. Co. Clerk

Commission Expires March 30, 1970

Exhibit to Affidavit of Paul C. Guth

UNITED STATES DISTRICT COURT _

SOUTHERN DISTRICT OF NEW YORK

No. 68 Civ. 2262

"Affidavit of John P. Garrigan

* State or New Yore

County or New Yorr |

Joun P. Gararcan, being duly sworn deposes and says:

Tart he is the Attorney for the Plaintiffs in the above

entitled action and is fully familiar _ all the facts’ and

circumstances herein.

1. This Affidavit is submitted in support of an applica-—

tion by the Plaintiffs for an order staying all proceedings

on the part of the Defendant pursuant to an Installment

Note, Indenture and Second Mortgage, each of which is

dated June 1, 1967. Copies of the Note, Indenture and

Second Mortgage are annexed hereto and made a al of

- this application..

2. The instruments in quesi§on were executed to. secure

an indebtedness of D. H. Overmyer Co., Ine., to the De-

fendant, Frick Company, in the sum of $130 977. The

- mortgaged property was and is located in Jefferson County,

Kentucky, and the deed thereto is duly recorded in the

Office of the Clerk of the County Court, Jefferson County,

- Kentucky, in Book 4006, Page 573.

3. The mortgage provides in part as follows:

“In the event Borrower shall (a) fail to pay the Note

and/or interest when the same shall become due and

payable; or (b) sell or permit the Mortcacep PRroperry

to be sold without the assent of Lznpers; or (c) be

. adjudged a bankrupt or insolvent, make an assignment

for the benefit of its creditors or be placed in receiver-

. ship; or‘(d) in any manner fail to keep and perform

any of the covenants, stipulations, and agreements set

A ERIN PLES SOAP TOL NEL EMER I I I

“ om

ene re %

NOT cn RS sencilla adit, Sit 5s mt euide scl ay Drtelencitliner get i ce ws Obata sites

- Pal

out in the Note or herein contained on its part ‘to be.

performed, then, and in any of such events, Frick

Company may, without notice, at its option immedi-

and any other indebtedness secured hereby imme-

diately due and payable and proceed to enforce the

collection: of the qe and all charges and costs per-

mitted by law an e lien of this Mortgage. lee

. 4, The Installment Note provides in part as follows:

“The undersigned hereby waive presentment, demand,

‘notice and protest of this note’’.

e entire unpaid balance of this Note shall become

a and payable at the option of the Payee,: without

demand or notice, on the appointment ofa receiver of

the undersigned er of its properties, if sich receiver- _

ship is not discharged within fifteen (15) days; or on

the filing of a petition by or against the undersigned,

under the Bankruptcy Act. of the United ‘States, if |

such petition is not discharged within fifteen (15)

days ; or onthe default in the payment of any install-

ment of principal or interest, if said default continues

for fifteen (15) days; or on the general assignment

for the benefit of creditors, if said assignm nt is not

discharged within fifteen (15) days’’. 5

5. By Summons and Complaint dated May 29, and

duly filed in the Office of the Clerk of the United States.

District Court for the Southern District of New York the

| Plaintiffs - commenced an action to recover for breach of '

contract by the Defendant. -

6. The Complaint of the Plaintiffs alleged in 1 substance

that the Defendant breached ‘a contract by negligently per-

forming work upon premises of the Plaintiffs and that as

a result thereof the Plaintiffs have sustained those i injuries

and damages as alleged in the Complaint in the total sum

of $172,600. Service was effected: upon the Defendant but

to date-no answer has been —=_

T.Due to the jutstemiien obligation by the Defendant

to the Plaintiffs Said Plaintiff, D. H. Overmyer Co., Inc.,

has stopped payment to the Defendant of those obliga.

tions under th iment Note, Indenture and Second

Mortgage referred to abové Payment has been Leet

as of June’ l,. 1968.

8. Plaintiff is moving for. Order to Show Game instead —~

of normal motion because it is readily apparent that the

Plaintiff D. H. Overmyer Co., Inc., would be severely dam-

aged if the Defendant were to accelerate the Note and

foreclose upon the premises covered by said mortgage.

9. In view of the foregoing, it is respectfully submitted

that the interest of justice will best be served by the —

granting of the relief sought herein apd staying all pro-

ceedings on the part of the Defendart until a.determina- .

tion of the action presently pending in this Court.

10. No previous application for the same or similar re-

_ lief has been made to any other Court or J udge. '

‘Wuererore, this deponent respectfully prays that an

order be made herein staying all-proceedings on the part

_of the Defendant pursuant to the Installment Note, In- —

Prt

denture and Second. Mortgage until a determination of

the litigation now pending in this. Court together with

' such other further relief as to this Court may..seem just |

and proper.

/s/ Joun P. Ganncax

Sworn to before me this - .

19th day of June, 1968.

/s/ Geratp N. Goupserd

Gerald N. Goldberg

' Notary Public, State of New Y iat

No. 31-6538920

Qualified in New York Coduty° os

Commission Expires March 30, 1970

_ UNITED STATES DISTRICT COURT

SOUTHEEN DISTRICT OF NEW YORK

No; 68 Civ. 2262

Memorandum of Plaintiffs, Nixon Construction Co. Tac. and

D. H. Overmyer Co. Inc. a

° er eo. ee: @ * «

Faots

- The Plaintiffs an are seeking an Order to Show —

Cause staying any and all proceedings on. the part of

Defendant Frick Company until a determination of the

action which was commenced in this Court: by the filing of

a Simmons and Complaint on “May. 29, 1968. .

-* “ Port I .

A Stray or Paocsmnexos ia WARRANTED

| ix Furs AcTION |

"It is necessary for the Plaintiffs to seek extraordinary:

relief by way of an Ordér to Show Cause to prevent the

atéeleration of an. obligation executed on June 1, 1967.

On said date an Installment Note in the sum of $130,970."

was executed by D. H. Ovenmyer Co., Ino., and secured

by a Second. Mortgage on ce$fain property. of said Plain-. |

tiff D. H. Overmyer Co., Ino. .

The ‘action which has been souineisel 4 in the U. 8. Dis

trict Court for the Southern District of New York sounds —

in breach of contract and the Plaintiffs are seeking to

recover of - the Defendant the sum of $172,600.

“The Plaintiff, ‘D. H. Overmyze Co., Inc. has stopped

| payment to Defendant, Frick Conary, pursuant to the

Installment Note referred to above in view of the pend-

ing litigation in this Court and the substantial nature of

the damages ‘sought.. Payment has been stopped as of

Ju une 1, 1968.

78.

As is indicated in the Affidavit of John P. Garrigan, the

Plaintiff, D. H. Ovzamyan Co., Ino, has stopped payment

because of the present litigation and the breach by De- -

: fendant, Frick Company, of its contractual obligations with

~~ the Plaintiffs. “~~ ~~~ ----——-. = 6

In view of the fact that the Plaintiff, D. H. Overmyzr ‘

Co., Inv. would be severely and substantially damaged if.

Friok Company were to accelérate the Installment Note

referred to herein this application for a stay of proceed-

ings is being made, J ..

@ra. o

See FS

or ep try ype s |

—

Porrr IT

‘Tue Reumr Sovaut Sout Br GRANTED, ”

Respectfully submitted, |

/8f Joun P. Ganrtcan

John P. Garrigan

UNITED STATHS DISTRICY COURT

SOUTHERN DISTRICT OF NEW YORK

No. 68 Civ. 2969

Order Vacating Stay

° *. * . ee . : °

Upon the annexed affidavit and application of Paul C.

Guth, verified the 3rd day of July 1968, the Order to Show

"Cause herein issued on June 19, 1968 and the annexed _

_ affidavit and motion of John P. Garrigan in support thereof:

"Verified the 19th day of June 1968, the affidavit of Howard

FP. Burpee verified the 24th day of June 1968, the summons

and complaint dated May 29 1968, the Installment Note -

dated June 1, 1967, the Indenture dated June 1, 1967, and -

85 Net CAIN th chains Oo NA ana Te nis ha ies

\e _ .

the Second Mortgage dated June 1, 1967, and upon n all the

pleadings and proceedings heretofore had herein, it is

Oxperep; that the third paragraph of said Order to Show |

Cause herein daged June 19, 1968 is hereby rescinded and

revoked and thée’stay therein ordered of the proceedings

more fully described therein on the part of said defendant

or its attorney until a hearing and determination of this

motion be-and hereby is vacated ; and

Ler service of a copy of this. order upon John P, Gar-

rigan, Esq., attorney for plaintiffs herein be good and

sufficient notice of entry thereof,

/s/ Manvin E.\Franken

: | United States District Judge

Dated: July 5, 1968 |

New York, New York -

—_———————

Index From Defendants’ (Overmyer) Mecerhdin in

' Support of Motion To Vacate

_ Filed in the Common Pleas Court of Lucas County, Ohio

.° ._ @ | . 8 ¢@ « e oe «8

- | Page-

Nature and Status of the Case 2.2.2.2... cece eee eee 1

The Court Does -Have J urisdiction of the Delanies 7

Asserted Herein . piles autos nese exeewadeeus woes 6.

The Proper Procedure in Deciding a Motion To Vacate

| A Cognovit Note Judgment sateen eteseccsegeee .9

Partial Failure of Consideration asa Defense toa

Nota. .....8ccneccccccces tte e cece ceemeeeeee cess. 17

Conclusion eds

“It THR COURT OF COMMON PLEAS OF LUCAS MOPNTY, OHIO |

C.P. No. 204697

- Journal Entry

“ @ * oe * * _ @ e . e. & *

This day this cause came on to be‘heard and was heard

_ on the oral motion of. both the plaintiff and defendants for

the court to order nunc pro tunc the Clerk of Courts to

_ stamp as filed the 5th day of September, 1968 * * * a certi-

fied copy of an opinion by United Sthtes District Judge

Walter Mansfield [in the case Nivon Construction Com--

pany, Inc. and D. H. Overmyer Co., Inc. v. Frick Co., File

No. 68 Civ. 2262 in the United States District Court, South-

- to the Court on that date, considered by the Court in reach-

ing its judgment herein, placed by the ail in the file, but

not previously stamped as filed. |

The Court, being fully advised in the premises, finds that

said motion is well taken.

-Wuenerore, It Is Oxnenzp, Apiiomp ak Dotan thal

the Clerk of Courts be, and he hereby is, ordered nunc pro

‘tune to stamp the 6riginal affidavits, which are in the

Gourt’s file and referred to above, as filed the 5th day of

: September, 1968. a Pe

: . [sf Jown J. Comnons, In.

| _— |

Apptoved : |

/s/ Sxumaxan, Loop & Kenprick —

- Shumaker, Loop & Kendrick

Attorneys for Plaintiff -

/s3/ Bucssr & Conmia va

Bugbee & Conkle |

" Attorneys for Defendants —

No. 68 Civ. 2262

In the United States, District Court

Southern District of New York

(Filed: August 7, 1968)

And Attached to Journal Entry in the:

.. Common Pleas Court of Lucas County, Ohio

*\ 0, P.No, 204697

(Filed: March 3, 1969).

Joun P. Gaznican, Eso.

. VA Attorney for Plaintiffs

_ - New York, N. Y.: 10017

‘Attorneys for Defendant

30 East 42nd Street ~

: New York, N. Y. 10017

Mawerma, DOJ.

_ In this diversity suit for damages which was-commenced

in June 1968 by two affiliated construction companies

(**Nixon’? and ‘‘Overmyer’’) against a company engaged.

int the manufacture and installation of refrigeration equip-

ment. (‘‘Frick’’), plaintiffs seek an. order staying defend-

ant frqm prosecuting state court progeedings elsewhere to

foreclose mortgages given to secure ‘payment of certain.

installment notes, now admittedly past a until] -determi-

nation of the present action. For the reas hereinafter

stated: the motion is denied. The pertinent facts as re-

g ; . es . \ ie

£ = - \

- 82 | : oe

, vealed in the papers and upon ergument of the motion. are:

as follows:

Under a soutract dated February 11, 1966 between a

' and ‘defendant, which was guaranteed by Overmyer, de- | ‘

fendant agreed to install refrigeration equipment in certain

warehouse facilities in Toledo, Ohio, being ‘constructed

‘by Nixon for Overmyer, its affiliate. As the work pro- |

gressed defendant encountered delays caused by Nixon. —

Nixon also failed. to make. progress payments required >

under the terms of the contract. As a result, in November . .

1966, after Nixon’s arrears: ‘amounted to welt < over $100,000, —

defendant filed mechanics liens on, the warehouse property

‘ under construction in the sum of $194, ; Thereupon .

Overmyer, in order to induce the defendant to pontinue .

‘: with the installation, paid defendant 10% of the amount

owed and executed a promissory note agreeing to pay

the balance of the amount due. in 12 equal installments: of

- $15,498 each, on condition thatéin the event of default the 7

balance of the unpaid installments would be ‘:accelerated -

and become due immediately.- On March-17, 1967, defend-

ant completed the installation of the refrigeration equip.

ment specified in the contract, which: was acknowledged - °

in writing by Overmyer’s vice-president to have been ‘“‘com:

"pleted in a satisfactory manner’’.. Under’'the'terms of the

February 11, 1966 contract, acceptance of the installed nia-

_, chinery’ and equipment. constituted a waiver by the buyer

of all claims except warranties. Defendant asserts that the

work was performed properly and in accordance with the’

terms of the contract and that any delays in construction

‘ were. due to Nixon’s failure to’ meet its obligations and

the failure of other contractors hired by Nixqn to complete

-. work which had the effect of preventing defendant from

_Preoeayaagy more: rapidly. ,

* Following defendant ’s completion of the- installation and :

) _geacceptance of it by the owner, Overmyer obtained from

-§

defendant an extension of time within whieh to pay off its

ay °

‘+ indebtedness to defe t. A new installment note was

‘executed by Overmyer in the sum of $130,977 dated June 1, —

1967, requiring payment in 21 monthly installments, which __

would be accelerated in the. event of default. This note -

was. secured ‘by execution of second mortgages on real.

_ Kentucky, whereupon on November 3, 1967, defendant re-

_ leased its mechanics liens. Plaintiff Overmyer has de-

faulted in payment of installments under its note, leading

defendant to undertake institution. of foreclosure proceed-

~ jngs. Thereupon plaintiffs commenced the present action .

_ which seeks damages in the sum of more than $170,000,

. “based upon defendant’s alleged breach of its aforementioned

contract. The principal claims are that the defendant per-

formed its services in an incompetent, negligent. and un-

‘Defendant asserts that the instant action and applica-

tion for a stay is baseless and has been instituted for the .

_ purpose of preventing defendant from enforcing the se-

curity to which it.is entitled under its 198 cE: with

Overmyer,

* Conctverons

7 Plaintiff has failed to show’ any likelihood that it will a

prevail upon the merits. On the contrary the extensive ~

documentary: evidence ‘furnished by defendant indicates —

that the plaintiffs’ aétion lacks merit. :

ae "No basis for equitable relief. in the fonii of’ stay 0 or

aoe (> injunction is indicated. Plaintiffs’ suit is limited to an |

action of damages and there is no showing that it would

‘suffer any irreparable. apery as a result of defendants

| “The effect of granting relief ‘would be to prevent the in

stitution of court proceedings in Florida and Kentucky in —

violation of the policy enunciated i in Title 28 U.S.C. "32283.

“

~“

“ee

84 . ‘

Accordingly, plaintiffs’ motion fo tig ‘injunctive relief in

‘the form of a stay is denied. “The féregoing shall consti-

- tute the Court’s findings of.fact and conclusions of law in

accordance with Rule 52(a), F.R.C. P.

So ORDERED. | |

s/ Waurtsr R. MansrFietp

Dated: August 7, 1968. .

** 3 IN THE

COURT OF APPEALS OF LUCAS COUNTY, OHIO

O.A. No. 6552

—C.P. No. 204697 -

“Motion for Reconsideration ;

Now come the appellants herein and move the court to

™ reconsider its findings that defendants-appellants failed .

to "prove the existence of a valid defense and that the an-

swer ‘ainé.cross petition of defendants-appellants constituted

only a coutiterclaim, and to reconsider its failure to rule

upon the issue ofthe proper rate of interest to be charged

on the. judgment as “Fequested by defendants-appellants.

Respectfully submitted,

/s/ Buasesg. & ConxLE-

_ Bugbee & Conkle

Attorneys for Defendants:

Aepelents |

27 « .

IN THE

. COURT OF APPEALS OF LUCAS COUNTY, OHIO’

aa . C.A. No. 6552

a C.P. No, 204697 see

| Motion To Certify the Case to the Supreme Court —

+ . oe e . . . .

Now come the appellants. herein: and move the court

to certify the decision herein to the Supreme Court of —

. Ohio because of its conflict with Rabb v. Kayline Co., 4

Oh. L.A. 703 (C.A., Cuyahoga, 1926); Canton Implement

- Co. v. Rauh, 37 Oh. App. 544 (Stark, 1930); Duraclean

Co. v. Hunter, 4 Oh. App. 2d 123, 33 Oh. Op. 2d 187

(Medina,- 1965) and McMillen v. Willard Garage, 14 Oh.

App. 2d 112 (Hancock, 1968). 3s . |

Respectfully submitted,

/s/ Bucsezr & ConkLe |

: .-. Bugbee & Conkle

. Attorneys for Defendants-

ca =.

ca IN THE COURT OF APPEALS OF LUCAS COUNTY, OHI0 ,

C.A. No. 6552

; C.P. No. 204697

| Application for Conclusions of Fact-

‘Now come the appellants herein and apply to the court to

state on the record apt yrmapet -of fact found ew

from the conclusions of law in this appeal. . :

3 | - Respectfully submitted, | :

/s/ Buoner & Conxkie ‘ v

Bugbee & Conkle...

Attorneys for Defendants- @

’

. . . . .

‘ . .

; 7 . 2

° . y .

, .

» : . . e

. - 7

MAP NS TET AEE A I INLET OGRE REO A AGS BPI AOI, REIN ES ME ON ES ER ; some

IN THE COURT OF APPEALS OF LUCAS COUNTY, OHIO —

—C.A. No. 6552

Journal Entry |

e * @ . °. . e . » * ¢

This cause came on to be heard on the Application of de-

' fendants-appellants for conclusions of fact found separately

from conclusions of law; Motion of defendants-appellants

for reconsideration ; and Motion of defendants-appellants

to certify the record of the Court of. Appeals to the Ohio

Supreme Court as a conflict case; and the same was sub-.

mitted to this Court on the Briefs of counsel. |

The Court, being fully advised in the premises, finds that .

the Application of defendants-appellants for conclusions of

fact found separately from conclusions of law should be

denied. ‘

The Court ethar finds that the Motion of defendants-ap-

pellants for reconsideration should be overruled.

The Court further finds that the judgment of this Court ~

- is not in conflict with any decision of the Court of Ap-

peals of any other district, accordingly the Motion of de-

fendants-appellants to certify, the record of the Court of

Appeals in this case to the Ohio Supreme Court should be

overruled. :

It is therefore OnpeReD, ApsupeEp and Decuzes that the

Application of defendants-appellants for conclusions of

-fact found separately-fronf conclusions of law is denied. °

It is further Onpenep, Apsupcep and Drcrerp that the

Motion of defendants-appellants for reconsideration i is over-

ruled.

It is further Orprrep, Apsupezp, ‘and Deceaeo that, the

Motion of defendants-appellants to certify the record of

Wea

the Court of Appeals in | this: case to the Ohio ——

Court is overrtled. .—

‘To all of which defendante-appellants except.

/s/ Currrorp F. Brown’ .

. Judge of the Court of Appeals

Presiding . a

| ‘Approved :

_ Buaser & ConKLE

_/8/ Buacsgs & ConkLe

Attorneys for Defendanis- Appellants

SHuMAKER, Loop & Kexpaick

/s/ James M. Tuscoman

Attorneys for Plaintiff-Appellee

= i

THE SUPREME COURT OF THE STATE OF OHIO

| - 1969 Term .

To wit: December 17,1969

| No.69-720 <

* e e - * Sf Baa e. * e.

To the Honorable Common Pleas Court Within and for

the County of Lucas, Ohio, Ohio, Greeting:

| The Supreme Court of Ohio commands you to proceed

without delay to carry the tea judgment + wn this cause

. into execution:

Appeal dismissed, sua sponte, no substantial constiie-

tional. question involved.

~? Tromas L. Srammaicax,

‘Clerk

¢ , :

~~ LIBRARY

SUPREME COURT, U. S. — 67 |

FILED

——APR.16 1970

~ AOHIUF. DAVIS, CLERK

IN THE =

- Supreme Court of the Anited States =

, Ocrnme: Tamas, TAT os

D. H. Overmyer Co., INc., of Ohio,

dD. HL OVERMYER Co., INc., of Kentucky, F Petitioners

- Parcx Company, a Peniayivaiia Corporation, ~

| a

_ PETITION FOR A WRIT OF ceria TO THE.

COURT OF APPEALS OF LUCAS COUNTY, OHIO

Attorney and Counsellor at Law

508 Federal Bar Building

Washington, D. C. 20006 °

EpMonp M. ConneEBY,’ - |

General Counsel si.

D. H. Overmyer Company —

201 East 42nd Street

New York, N.Y. 10017

Pauses or Braon S. Apams Patrrine, Ivc., Wasumeros, D.C.

I. A money judgment rendered without service or

notice to the defendant denies fundamental rights

. INDEX

Opinion below ......... ycesenavasudateensehespees 2

Jurisdiction seu ctaaekeaes i veonhaeanedeeee es jescedt 2

; Questions presented .....:..6...000¢6+ sees Givesene

| Statement of the case ......... iaeyes ‘secalsecnttvessis 3

Reasons for granting the writ, jveadentcedewusssenes

protected by the due process clause of the Four-. _

_ teenth Amendment, even though based upon a so-

called warrant of attorney in a promissory note.

In this the decision below conflicts with applicable -

- controlling decisions of this Court .............. a

II. Relief from an invalid judgment which is condi- -

. tioned upon & demonstration that a meritorious de-

fense exists in the Court’s discretion, is a denial

of due process of law, and conflicts with applicable

- decisions of this Court ..............3......08.

ITI. Many thousands of judgments are taken every year

_ on eognovit notes without. process or notice to the

defendants, and without opportunity to present

- meritorious defenses, thus forcing settlement under

threat of garnishment of wages, seizure of prop-

erty, or damage to credit standing. The matter is -

of national importance and merits this Court’s ‘ré-

- view on certiorari oO PORTA EO KS Oo Os OWarbogs neds

Conclusion eovpeeoseoeoveevesace eeeeee iw eeree eve a wee ued

APPENDIX:

Pertinent Docket Entries seal dieeeees eens cdeed Y 7

Petition in the Court of Common Pleas, With Instal-

ment Note Attached at Exhibit A .....:.......; /.

Appearance of Attorney for Defendants and Confes-

‘sion of Judgment ....... ic Siedinds aduaes ea wes ae.

J ndgment Entry in the Court of Comrion PI Pleas ..... a

. Index Continued

Notice of Judgment on Cogrovit Note ...... were we. 9a

Motion for New Trial ...............4. isan iene eos 10a

Affidavit of Joseph W. sicmmitsl Supporting Motion:

‘for New Trial ........... iowhalinevoacedye tens 10a

Motion To Vacate J udgment gatterecouee (eauteseaurs lla |

"Answer of Defendants and Cross Petition .......... 12a

"Order Overruling Motion for New; ‘Trial, and Motion

. To. Vacate Judgment .........: cc eee eee e tenes 19a

| Court. of Appeals: Assignment of Error, No. 2 isteaas 20a

Court of Appeals: Order Affirming Trial Court ...... 20a *

Ohio: Supreme Court, Transcript of Record, p. lil . . 21a

Ohio Supreme Court Order of Dismissal ............ os

Ohio Revised Code § 2323.13:..... Vesooae eel aaweees, 22a

oe AUTHORITIES. CITED |

Alderman, ‘Bateman & .Bateman v.-Diament,7 NJ.L.

107, 208 IUD) hac ces eeGeee seca as 6

Armstrong v. Manzo, 380 U.S. 545 (1965) ore .:% 3, 13

Bellows v. Bowlus, 83 Ohio App. 90, 82 N.E. 2d 499,

a rie a oe ee a ewes 9

Coe v. Armour Fertilizer Works, 237 U.S. 413, 423

2 ON ee acne acer de can ua kuceweces 7

Covey v. Town of Somers, ‘351 US. 141, 145 (1956) .. 10.

‘Grannis v. Orden, 934 US. 385, 7 eee eee or: 8, 12

. Griffin v. Griffin, 327 US. 220, 298 4 eee 9.

Hadden v. Rumsey Products, Inc., 196 F. “ba ‘92, 96

OR 5 es ccs dis io hv edaa toes —«6

_ McDonald v. Mabee, 243 US. 90, 92 (1916) ee

._ Monarch Refrigerating Co. v. Farmers’ Peanut Co.,

74 F. 2d 790 (4th Cir. 1935) 2.00... cee eee 12

Mullane v. Central -Hanover Bank and Trust Co. ™ 339 ,

UB. 306, S14: (19H) oon cep cc cccececsccdd 8 °°

Saunders v. w, 244 U.S. 317, 319 (1917) .......... 2 ae

° Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) .

Speiser v. nae, 357 US. eee ere ae

6,7, 10,13 .°

> eden Continued “a oy i

, | | Page

- Sratute: | F 7 Hateweet wily ;

Ohio Revied Code 280813 one eu awe tupast ia

Goodrich, Confligt .of _— §-73 (4th ed. 1964) ...... 15

31 Ohio Jur. 2d, Judgments, § 139 (1958) ........ sees 6

Law Reviews: - a

A Clash in Ohio?: Cognovit Notes. ond the Business”

Ethic of the UCC, 35 U. Cincinnati L. Rev. 470

(1966) ..... he diecata Lececacees idivanas certes eed 15.

Cognovit Judgments: An Ignored Problem of Due Proc-

ess and Full Faith and Credit, 29 Chi. L. Rev. 111,

121 (N. 63) (1961) ......... esvewesebeeduwieees 7, 14

Conditioning of Relief From Unenforceable Judgment

Upon Showing of Meritorious Defense To “Claim

Up on Which It Was Entered Can Deny Due Proc- —

$, 64 Mich. L. Rev. 726 (1966) .......:........ 12

noctepcalls in the Law—State Court Jurisdiction, - oP

-. 93 Harv. L. Rev. 909 (1960) ..... (ukeeeleee estes ‘Bb.

Notice and Adoption—The Requirement of Due Pree: - Pre

. ‘ess, 19 Southwestern L.. 5. (29GB) vive detec 12:

The Warrant of Attorney To Reefs Judgment, 8 Ohio as

Aue a i eas ramets Sererrerret BS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.