Mccloskey & Co. v. Minweld Steel Co.

220 F.2d 101 (3d Cir. 1955)

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Nature of the Case

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Facts

McCloskey (P) made three contracts with Minweld (D) for D to furnish and erect the steel for two hospital buildings. The contract called for P to set up schedules for the delivery and erection of the steel. If D failed or refused to supply sufficient materials of proper quality, P would have the right to terminate on two days' notice. D received contract drawings and specifications for both buildings in May 1950. On June 8, 1950, P wrote D asking when it might 'expect delivery of the structural steel' for the buildings and 'also the time estimated to complete erection.' D submitted a scheduled estimate of expecting to begin delivery of the steel by September 1, and to complete erection approximately November 15. P wrote D threatening to terminate the contracts unless the latter gave unqualified assurances that it had effected definite arrangements for the procurement, fabrication, and delivery within thirty days. D replied that he had difficulty procuring the steel due to the outbreak of the Korean War. D requested help from P or the state to find steel. P treated this reply as a breach. P terminated the contract and hired another contractor who had no problem procuring steel. P sued D for anticipatory breach. P claims that by the last reply, read against the relevant facts, D gave notice of its positive intention not to perform its contracts and thereby violated same. D moved for dismissal after P's case was completed. D's motion was granted. P appealed.