Graham Paper Co. v. Schottco Corp. , 419 F. Supp. 908 ( 1976 )

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MEREDITH, Chief Judge.

This matter was tried to the Court. The Court makes the following findings of fact and conclusions of law:

Findings of Fact

1. Plaintiff, Graham Paper Company, is a Missouri corporation, with its principal place of business in St. Louis, Missouri.

2. Defendant, Schottco Corporation, is a corporation with its principal place of business in a state other than Missouri.

3. The amount in controversy exceeds $10,000.

4. This Court has jurisdiction and venue pursuant to 28 U.S.C. §§ 1332 and 1391(a).

5. On August 15, 1974, plaintiff’s salesman, C. Roland Cobb, sent a written quotation to defendant regarding No. 50 black brick wrap to be specially cut in three inch by thirty-nine inch strips.

6. In conjunction with the possible sharing of a truckload of the said brick wrap by defendant and Peoria Brick Company, Cobb sent a written quotation to Mr. Carney at Peoria Brick Company regarding brick wrap on August 23, 1974.

7. On September 30, 1974, defendant’s plant manager, Donald L. Nelson, telephoned C. Roland Cobb and ordered brick wrap.

8. Nelson prepared and mailed to Cobb a written order, dated September 30, 1974, for 40,000 pounds of No. 50 black brick wrap, cut in strips of 3" X 39". This order was forwarded by Cobb to the plaintiff’s office in St. Louis and thereafter the plaintiff sent a written acknowledgement to defendant for an order of 40,000 pounds of said brick wrap.

9. The brick wrap was delivered to defendant on about December 16, 1974. Shortly after receiving the shipment and the invoice, Nelson called Cobb and claimed that a mistake had been made and rejected the shipment.

10. The total price of the shipment of brick wrap amounted to $26,503.10. A small amount of the brick wrap has been sold by the parties and there is still unpaid the sum of $24,793.22. The defendant closed the brick plant to which the sale was made on or about December 1, 1974. The plaintiff purchased the brick wrap in question by special order from the Ludlow Company and has already paid to the Ludlow Company the sum of $23,875.64, less a one percent discount. Defendant’s plant manager made a mistake in the amount of brick wrap which was needed by the plant in question and ordered approximately ten times too much material. The plaintiff was not aware of this mistake and under all of the testimony and facts introduced in evidence could not have been expected to be aware of the mistake which defendant’s manager made.

Conclusions of Law

1. This Court has jurisdiction over the subject matter and the parties to this action under the provisions of 28 U.S.C. § 1332.

2. Plaintiff is entitled to recover a judgment against the defendant for $24,793.22.

3. Defendant has failed to establish by clear and convincing evidence that the unilateral mistake made by defendant was one which plaintiff either knew about or should have known about.