Madden Engineering Corp. v. Major Tube Corp. , 1977 Tenn. App. LEXIS 329 ( 1977 )

OPINION ON PETITION TO REHEAR

Nassau Trust Company has filed a petition to rehear, complaining that our original opinion allowed Archer credit for a one percent discount of $1164.11 and other miscellaneous deductions of $124.55.

Although our original opinion did not address these two items, they were considered. With regard to the discounts, the agreement provided as follows:

3.4 The price to be paid by Archer for tubes delivered hereunder, during the first twelve months of this Agreement, shall be those prices set forth in EXHIBIT D hereto, less fifteen percent (15%). Thereafter, and commencing on the first day of the thirteenth month after the date of this Agreement, Archer’s payment to Tubes (sic) shall be determined monthly by the following method: Fifteen percent (15%) below the lowest market price for comparable tubes then available to Archer from any source.

In this connection, William G. Giasi, who was vice-president of Major Tube and manager of its Greeneville operation, testified as follows:

Q. It’s true, is it not, that in the first place 1% 10 day discounts are customary in the trade, and particularly in the core trade?

A. I would say that is correct.

Q. And I believe that the pricing structure in the contract between Tube and Archer refer to the Sonoco prices as sort of a base point?

A. Right.

Q. And that Sonoco in its pricing structure offered a discount, too?

A. Right.

Q. 1% 10 days?

A. Yes. When they issued-we had the contract with an appendix with the prices. When they issued the blanket purchase order they-

Q. “They” being Archer?

A. Archer-it was brought up that they were getting “1-10”.

Q. The purchase order on its face had written on it “1% 10 days”?

A. I guess for Archer’s accounting purposes they issued us a blanket purchase order right as we began operation and they said that they were getting a “1-10” discount from Sonoco and-

Q. So, your invoices--that is, the invoices which Tube sent to Archer had written on their face “Terms, 1% 10 days”?

A. Correct.

Q. So, will you agree, then, that the discounts-that is, item #2 of the Special Master’s Report, $1,164.11 is a proper discount taken for the 1% 10 day period?

A. Yes, I would,-

We accordingly conclude that, in light of Mr. Giasi’s testimony, the contract as drawn contemplated a discount.

The second point raised by Nassau insists that at least one invoice was not paid within 10 days and, therefore, not entitled to be discounted. This was not considered in our original opinion because the case was argued and briefed on the theory that the discounts were improperly allowed because they were not provided for in the agreement, rather than because they were not paid at the proper time. Because this question was not initially presented we are disinclined to grant the petition.

Moreover, as to both propositions, the assignment provided that Nassau, after deducting all charges currently due it from the assigned proceeds, would credit the balance of the payments to Major Tube’s checking account. This procedure was followed by Nassau deducting $3000 from each check (except the last one in the sum of $239.77) and delivering the balance to Major Tube. Thus, it can be seen that, assuming Nassau is correct and Archer was not entitled to the discount, even if Archer had paid the full invoice price, the situation of Nassau would not change because it was required to deliver the additional sums to Major Tube.

The miscellaneous items consist of a $53.20 credit for padlocker tape purchased for Major Tube, and a $51.35 credit as the difference between credit taken for the estimated cost of stock delivered to Major Tube and the actual cost as finally determined. In our view both items are comparable to the purchase of core paper and subject to be credited.

Archer, in its response to the petition to rehear, complains of our not allowing credit for the funds paid into court. We seriously question whether the matter is properly before us in view of the fact that it was not presented within the 10 days provided by Rule 22 of this Court. In any event, the complaint is merely a reargument of matters previously considered by the Court and is overruled. We do concede in this connection that Archer is correct in that it will be required to make a double payment. This, however, is invariably the penalty exacted from a creditor who fails to protect an assignee. Conner v. Allen, 40 Tenn. 419 (1859).

PARROTT, P. J. (E.S.), and SANDERS, J., concur.