Aro Equipment Corporation, Appellant, v. Natkin & Company, Appellee, 201 F.2d 160 (6th Cir. 1952)

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US Court of Appeals for the Sixth Circuit - 201 F.2d 160 (6th Cir. 1952) December 16, 1952

Appeal from the United States District Court for the Northern District of Ohio; Frank Le Blond Kloeb, Judge.

Shumaker, Loop & Kendrick, Toledo, Ohio, for appellant.

Farber, Cochrane, Green & Schrader, Toledo, Ohio, for appellee.

Before ALLEN, MARTIN and MILLER, Circuit Judges.

PER CURIAM.


This appeal having been heard on the record, briefs and arguments of counsel for respective parties;

And the Court being of the opinion that the findings of fact by the District Judge are supported by the evidence and are not clearly erroneous;

And that the contract herein sued on, and as it may have been modified thereafter, was not a "requirements" contract which would permit the appellant to order as little or as many of the Service Merchandisers from month to month and from year to year as it might choose to order, and that said contract was breached by the appellant;

And that the alleged variance between the allegations of the amended complaint and the proof were not of such a nature as to prejudice the appellant; Rule 15(b), Rules of Civil Procedure, 28 U.S.C.A.; Ruud v. American Packing & Provision Co., 9 Cir., 177 F.2d 538, 541; National Dairymen's Ass'n v. Dean Milk Co., 7 Cir., 183 F.2d 349, 355;

And that the opinion of the trial court meets the requirements of Rule 52(a), Rules of Civil Procedure, with respect to findings of fact and conclusions of law, Burnham Chemical Co. v. Borax Consolidated, 9 Cir., 170 F.2d 569, 574.

And no prejudicial error of law appearing;

It is ordered that the judgment of the District Court, 109 F. Supp. 273, be and is affirmed.