Messrs. Wm. Dwight Whitney and Albert R. Connelly, both of New York City (Mr. John Logan O'Donnell, of Washington, D. C., of counsel), for petitioner.
Messrs. J. Edward Lumbard, Jr. and Theodore S. Hope, Jr., both of New York City (Messrs. Donovan, Leisure, Newton & Lumbard, and Ralstone R. Irvine, all of New York City, and Charles W. Sellers, of Cleveland, Ohio, of counsel), for respondent.
On writ of certiorari to the Circuit Court of Appeals for the Second Circuit.
In this case two members of the Court think that the judgment of the Circuit Court of Appeals should be affirmed. Seven are of opinion that the judgment should be reversed and the judgment of the District Court affirmed-four because proof of the contract alleged in respondent's affidavits on the motion for summary judgment is precluded by the applicable state parol evidence rule, and three because the contract is contrary to public policy and void, see Tool Company v. Norris, 2 Wall. 45, 54; Hazelton v. Sheckells, 202 U.S. 71, 79 , 26 S.Ct. 567, 568, 6 Ann.Cas. 217; Executive Order No. 9001, Tit. II, par. 5, 6 Fed.Reg. 6788, 50 U.S.C.A. Appendix 611 note; War Department Procurement Regulations, 10 Code Fed.Reg. (Cum.Supp.) sec. 81.1181. The judgment of the Circuit Court of Appeals is reversed.[ American Seating Co v. Zell 322 U.S. 709 (1944) ]