(dissenting):
With deference I do not agree. When the contract was executed the parties did not know what “logs, papers, technical data and descriptive material” were either in the seller’s possession or were available to the seller. Significantly the contract spoke of the future, “will furnish,” was written in all-inclusive terms, “all logs, papers, etc.,” and used the broader expression “available to it” rather than “in its possession.” The “cardex” or “card packs” on the engines were “technical data” and “descriptive material” withoi' which a prospective purchaser could not determine the cost of modifications necessary before the engines could be placed in service. Without that information the prospective purchaser was buying a “pig in a poke.” The card packs were absolutely essential to a sale of the engines at a price advantageous to Miami. General Electric flatly declined to furnish the card packs to Miami, but offered to provide them to Convair on a cost basis. A jury could reasonably have found that the card packs were “available” to Convair. Admittedly they were not available to Miami. I dissented at length from the directed verdict standard adopted by this Court in Boeing v. Shipman, 5th Cir.1969, 411 F.2d 365, 369-370. Even under that standard, however, I think that questions of fact were presented for a jury’s determination, and that the district court erred in directing a verdict against Miami.