Before MARIS, McLAUGHLIN, and O'CONNELL, Circuit Judges.
The plaintiff brought an action in the District Court for the Eastern District of Pennsylvania to recover $20,674.66 paid by it to Douredoure Brothers through an alleged mistake of fact. The defendants admitted the receipt of the money, denied that the payments were the result of a mistake of fact and counter-claimed for an additional $2,501.85. Douredoure Brothers brought Keystone Rendering Company, Inc., into the suit as third party defendant.The case was tried by a judge of the district court without a jury. He denied recovery to the plaintiff and entered judgment on the counter-claim in favor of the original defendants and against the plaintiff and the third party defendant. The plaintiff has appealed. The facts giving rise to the plaintiff's claim and the defendants' counter-claim are as follows:
The plaintiff and the defendants entered into two separate written contracts, the first of which was as follows:
Seller: Douredoure Brothers,
227 South Front Street, Philadelphia Pa.
Buyer: J. Eavenson & Sons, Division of Wilson & Company, Inc.
Penn St. & Del. River, Camden, N.J. Commodity: Inedible Choice Tallow, maximum 4% f.f.a., 11 F.A.C. color, basis 1% M.I.U.
Quantity: Approximately 1,560,000#
Shipment: (1) tank wagonload, about 30,000# net, per week commencing January 1st, 1943, up to and including December 31st, 1943
Weight: Railroad truck scale weights to be furnished by seller
Price: New York Extra Tallow market, plus one-eighth cent (1/8) per pound for Choice quality, based on Pratt Brothers Daily Report, for five-day average before and ...