ReMAPP International Corporati v. Comfort Keyboard Company Incor

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3282
R EM APP INTERNATIONAL C ORPORATION,
Plaintiff-Appellee,
v.
C OMFORT K EYBOARD C OMPANY, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07 C 287—Aaron E. Goodstein, Magistrate Judge.
A RGUED F EBRUARY 19, 2009—D ECIDED M ARCH 24, 2009
Before F LAUM and W ILLIAMS, Circuit Judges, and
K APALA , District Judge. 1
K APALA , District Court Judge. In this diversity action,
plaintiff, ReMapp International Corporation, filed a
1
The Honorable Frederick J. Kapala of the United States
District Court for the Northern District of Illinois, sitting by
designation.
2 No. 08-3282
complaint alleging that defendant, Comfort Keyboard
Company, Inc., breached the parties’ contract for the
sale of goods by failing to pay for the items it ordered
from plaintiff. Following a bench trial, the magistrate
judge entered judgment in favor of plaintiff on its breach
of contract claim in the amount of $67,560. Defendant
now appeals.
I. Background
At trial, Hal Edmonds, the president of plaintiff, testified
that plaintiff provides contract manufacturing services
of electronic materials, including printed circuit boards.
Edmonds testified that plaintiff had done business
with defendant for about six or seven years. When plain-
tiff and defendant started doing business, defendant
would submit a written purchase order for goods. How-
ever, within a very short time, defendant would just call
plaintiff and say what parts it needed. Edmonds testi-
fied that since 2004, the payment terms for all board
assemblies were 50% “ARO” (after receipt of the pro forma
order) and 50% thirty days after receipt of the shipment.
Edmonds recalled that in April 2006 defendant ordered
1,000 USB boards, and in May 2006, defendant placed an
order for 1,000 HUB boards.2 In July 2006, both orders were
2
The parties and the magistrate judge referred to the boards
as both keyboards and circuit boards. It is unclear from the
record what the proper term is or how the two types differ.
(continued...)
No. 08-3282 3
increased to 2,000. According to Edmonds, the defendant’s
president, Khalil “Charles” Afifi verbally placed each
order directly with Edmonds, as was the practice for
some years. In addition to the boards, Afifi verbally asked
plaintiff to buy microprocessors for all the boards if
plaintiff could buy the microprocessors for less than six
dollars. Plaintiff was able to find microprocessors for
$5.85. Plaintiff then called Afifi and obtained Afifi’s verbal
authorization to purchase 4,100 microprocessors at the
$5.85 price.
According to Edmonds, after Afifi placed the orders
for the boards, plaintiff provided defendant with a pro
forma invoice, which was essentially “what the final
invoice would look like when the product is finished
and delivered.” This would assure that defendant knew
exactly what it would be paying when the bill was due.
The pro forma invoice contains conditions and includes
the freight, “it documents what’s transpired, and has
built into it a request for the payment conditions.”
Edmonds explained that a pro forma invoice is not a
quotation, but “a follow-up to an agreement to an accep-
tance.” As to the microprocessors, plaintiff issued a
standard invoice dated July 19, 2006, which stated
“100% Payment at time of purchase.”
Edmonds recounted that from April through
August 2006 the parties had continuing dialog on
2
(...continued)
Because these details are not critical to our analysis, in this
opinion, they are simply referred to as boards.
4 No. 08-3282
various aspects of the orders. At no time did defendant
tell Edmonds not to proceed with the orders. According
to Edmonds, he and Afifi had discussed the invoices
for the boards numerous times, and Afifi encouraged
plaintiff to keep going and make whatever changes were
necessary. On May 2, 2006, Edmonds sent an e-mail to
Afifi stating that plaintiff was finishing “the USB” and the
“HUB can move quickly, as well.” On May 19, 2006,
Edmonds sent Afifi an e-mail stating that he found a
program in a sample board that was used to program a
component of the USB board and stated that he had
attached the pro forma invoice for the USB boards. Afifi
replied, “YOU ARE THE BEST. . . . . . GREAT NEWS . . .
‘THANK YOU.’ ” Edmonds explained that on August 17,
2006, he sent Afifi an e-mail asking if Afifi wanted one
USB connector on 1,000 HUB boards, and two USB con-
nectors on the other 1,000 HUB boards. Later that day,
Afifi responded with an e-mail stating, “1500 with two
and 500 with one.” On August 18, 2006, Edmonds sent
Afifi an e-mail about a design change defendant had
requested. In that e-mail Edmonds states, in part, “[F]or
the 1000 boards already made the engineer says he can
put an SMT pad on the backside using the existing pads.
Will that work for you?” Later that day, Afifi replied,
“GREAT. . . . PLEASE HAVE THEM DO THAT. . .”
On July 28, 2006, Edmonds sent Afifi an e-mail request-
ing payment for the invoices for the USB and HUB
boards. Edmonds explained that plaintiff deviated
slightly from its normal procedure by ordering the prod-
ucts prior to pre-payment. On cross-examination, Edmonds
admitted that in his history of working with defendant,
No. 08-3282 5
this was the first time that defendant had not paid at
least 50% before plaintiff placed an order with the supplier.
Edmonds sent Afifi several more e-mails in August and
September requesting payment. Edmonds estimated that
between May and October 2006, he had approximately
twenty conversations with Afifi in which Afifi promised
that the payments were forthcoming. On September 26,
2006, Afifi sent an e-mail to Edmonds stating that his
investors wanted to use a different supplier. Edmonds
responded with an e-mail requesting that Afifi pay the
balance of his account.
Edmonds further testified that on October 6, 2006,
plaintiff issued an invoice to defendant for the parts that
had been manufactured. Edmonds testified that both the
USB and HUB boards had been manufactured, but the
microprocessors had not yet been put on the boards when
production was stopped. According to Edmonds, the
printed boards are unique for each customer because
they are designed for each customer’s particular need. If
the customer did not take what they ordered, the boards
would be scrapped. The microprocessors, on the other
hand, were purchased, but could be sold and used else-
where. At the time of the trial, the boards and the micro-
processors remained in China undelivered because de-
fendant had not paid plaintiff.
Afifi testified that the parties first started doing business
around 2001-2002. Afifi described the parties’ purchasing
practice up until May 2006 as follows. Purchases would
begin by Edmonds calling Afifi and asking if Afifi
needed anything. Afifi would then ask for a price and
6 No. 08-3282
Edmonds would issue a pro forma invoice, which was
“technically like a quote.” Sometimes they would go
back and forth, and Edmonds would send multiple pro
forma invoices with adjustments. If the price was ac-
ceptable to Afifi, he would send Edmonds 50% of the
payment for the order. Once the job was done, Edmonds
would call Afifi to inform him that the boards were
ready to ship, and the other 50% was required. Afifi
identified several previous pro forma invoices where he
paid 50% at the time he placed the order and 50% at the
time the order was ready to be shipped. According to
Afifi, the 50% payment was an approval by defendant to
proceed with the job.
Afifi further testified that he never authorized invoices
for the USB boards, HUB boards or the microprocessors.
Specifically, Afifi testified that he never asked Edmonds
to see how much it would be to increase the original
board orders to 2,000 boards. As to the microprocessors,
Afifi testified that he never authorized the purchase of
the microprocessors because he could get them in the
United States for a cheaper price. Afifi also claimed he
never paid 50% down on any of the orders as he had done
in the past, and denied having any conversation with
Edmonds that plaintiff would order any of the items on
credit. Afifi denied receiving several of Edmonds’ e-mails
seeking payment and averred that many of the e-mails
that Edmonds claimed were from Afifi were fraudulent.
The magistrate judge entered judgment in favor of
plaintiff on plaintiff’s breach of contract claim concluding
that three oral contracts existed between plaintiff and
No. 08-3282 7
defendant. The first was for defendant to purchase 2,000
USB boards at a price of $21.65 each for a total cost of
$43,300. The second was for defendant to purchase 2,000
HUB boards at a price of $23.60 each for a total cost of
$47,200. The third was for defendant to purchase 4,100
microprocessors at a price of $5.85 each for a total of
$23,985.
The magistrate judge noted that because the sale of
goods in each contract was in excess of $500, Wisconsin’s
codification of the Uniform Commercial Code’s Statute
of Frauds required the contract to be in writing. Wis. Stat.
§ 402.201. However, the magistrate judge concluded that
the parties’ oral contracts fell within exceptions to the
Statute of Frauds. First, he found that the evidence estab-
lished that the USB and HUB boards were custom manu-
factured for defendant and were not suitable for resale
to others. As such, he held that the first two contracts
were enforceable under Wisconsin Statute § 402.201(3)(a),
which provides an exception to the Statute of Frauds
for specially manufactured goods. Second, the magistrate
judge found that defendant failed to object to plaintiff’s
July 19, 2006 invoice for the 4,100 processors within ten
days after receipt of the invoice. Accordingly, he held
that this third contract was enforceable under Wisconsin
Statute § 402.201(2), which provides an exception to the
Statute of Frauds where a merchant sends another mer-
chant a written confirmation of the parties’ contract, and
no written objection is made within ten days of receipt.
The magistrate judge awarded damages to plaintiff for
the USB and HUB board contracts, but not for the micro-
8 No. 08-3282
processor contract. The magistrate judge held that plain-
tiff was not entitled to damages for defendant’s breach
of the microprocessor contract because plaintiff failed to
show that it mitigated its damages by attempting to
resell the microprocessors which could be resold at the
full price. As to damages for the USB and HUB boards,
the magistrate judge found these could not be resold,
deducted freight charges and additional unproven
charges as well as the $.10 per pound that plaintiff could
obtain as scrap for the boards, and awarded plaintiff a
total of $67,560.00 in damages.
II. Discussion
On appeal, defendant argues that the magistrate judge
erred in his findings of fact by concluding that oral con-
tracts existed, that those oral contracts were outside of the
Statute of Frauds and that plaintiff was entitled to dam-
ages. Defendant also argues that plaintiff assumed
the risk of ordering all of these electronic components by
proceeding without any assurance defendant would
accept the product.
We review the trial court’s findings of fact and its
application of facts to the law for clear error. Cohen Dev. Co.
v. JMJ Props., Inc., 317 F.3d 729, 735 (7th Cir. 2003). The
existence of a contract is a mixed question of law and fact
subject to clear error review. E.C. Styberg Eng’g Co. v. Eaton
Corp., 492 F.3d 912, 917 (7th Cir. 2007); see also Cohen, 317
F.3d at 737-38 (applying clearly erroneous standard to
review the trial court’s application of the facts to Statute
of Frauds exceptions). “A finding is clearly erroneous
No. 08-3282 9
only when this court is left with a definite and firm con-
viction that a mistake has been committed.” Cohen, 317
F.3d at 735 (quotation marks omitted). The party alleging
error bears the burden of demonstrating that particular
factual findings are clearly erroneous. Carnes Co. v.
Stone Creek Mech., Inc., 412 F.3d 845, 847 (7th Cir. 2005).
A. Formation of a Contract
Defendant’s first argument is that the magistrate judge
erred in his finding of facts by holding that the parties
had three oral contracts. Defendant contends that the
facts do not demonstrate any acceptance of the contracts
by defendant. Specifically, defendant asserts that the
testimony regarding the parties’ course of dealing shows
that plaintiff’s pro forma invoice was a written offer,
that acceptance of the offer required 50% pre-payment,
and that defendant never accepted the offer because it
never paid the 50% pre-payment.
However, this court cannot find that the magistrate
judge clearly erred in finding that the pro forma invoice
was a written confirmation of the parties’ earlier oral
agreement rather than a written offer requiring pay-
ment for acceptance. Under Wisconsin law, “[a] contract
for sale of goods may be made in any manner sufficient
to show agreement, including conduct by both parties
which recognizes the existence of such a contract.” Wis.
Stat. § 402.204(1). In this case, Edmonds testified that Afifi
called him and placed orders for the USB boards and the
HUB boards, after which Edmonds created a pro forma
invoice. Edmonds explained that in place of the purchase
10 No. 08-3282
orders defendant submitted to plaintiff at the beginning
of the parties’ relationship, plaintiff had created a pro
forma invoice after defendant placed an order to assure
defendant knew exactly what the final invoice would
look like. Edmonds further testified that the pro forma
invoice was not a quotation, but occurred after the ac-
ceptance of the agreement.
Moreover, both parties’ conduct indicated they had
formed a contract. In response to Edmonds’ e-mail sending
the pro forma invoice for the USB boards, Afifi replied
affirmatively. Later in the summer, Afifi sent e-mails to
Edmonds responding to a question about how he wanted
the HUB boards constructed. In addition, Edmonds’
e-mails to Afifi frequently indicated that the boards were
either made or being made, and the record shows no
response by Afifi informing Edmonds that he did not
think the parties had a contract.
Although defendant argues that Afifi should be
believed when he testified that the pro forma invoice
was a “quote”, the trial court is entitled to significant
deference as to its credibility determinations. E.C. Styberg,
492 F.3d at 917. Afifi’s testimony that he believed he had
not accepted Edmonds’ offer was contradictory to the e-
mails he sent to Edmonds and his overall silence in re-
sponse to clear indications that plaintiff was producing
his order.
Defendant has not developed a separate argument as
to the microprocessors, but the magistrate judge’s
finding that the parties entered a third contract for 4,100
microprocessors is also supported by the record. Edmonds
No. 08-3282 11
testified that Afifi verbally asked him to buy the micro-
processors for the boards if he could find them for under
$6.00. He further testified that when he found the micro-
processors for $5.85 he obtained Afifi’s verbal authoriza-
tion to purchase them. Because Edmonds needed to
contract for the microprocessors quickly to maintain the
price, he entered the contract and issued Afifi an invoice
for 100% of the payment. Neither party testified as to a
pro forma invoice for the microprocessors. Thus, it is
unclear if defendant is contending the invoice was plain-
tiff’s offer which required 100% payment for acceptance.
In any event, although Afifi denied placing any oral order,
again, the magistrate judge credited Edmonds’ testimony.
This testimony supports the magistrate judge’s con-
clusion that the parties had an oral agreement for the
microprocessors.3
Defendant is correct that the evidence reflects that up
until these orders plaintiff always required a 50% down
payment prior to commencing manufacture of the prod-
ucts. However, this fact does not necessarily indicate
that the parties did not have a contract. According to
Edmonds, when defendant placed an order and plaintiff
orally accepted, plaintiff then created a pro forma invoice
outlining the terms of the parties’ agreement. One of the
terms of the agreement was 50% payment upon receipt of
3
In addition, for reasons further discussed below, defendant’s
arguments regarding the microprocessors are moot, as the
magistrate judge denied plaintiff any damages for defendant’s
breach of the parties’ oral contract for the microprocessors.
12 No. 08-3282
the invoice. Simply because the payment terms of a
contract go unfilled does not mean there is no contract.
Here, the magistrate judge’s finding that there was an
oral offer and acceptance is not clearly erroneous.4
B. Statute of Frauds Exceptions
Defendant next argues that the magistrate judge erred
in finding that the three oral contacts were enforceable
because exceptions to the Statute of Frauds applied. Again,
defendant does not separate its arguments regarding
the boards and the microprocessors, but this court will
address these components separately, as the magistrate
judge applied a different Statute of Frauds exception to
each.
4
The defendant cites this Court’s decision in Dresser Industries,
Inc., Waukesha Engine Division v. Gradall Co., 965 F.2d 1442, 1449
(7th Cir. 1992), for the proposition that, where a party sends a
written offer that makes acceptance of the agreement subject to
its terms and those terms are not met or are rejected, no enforce-
able contract results. However, defendant leaves out the
additional finding in Dresser which states that, “If, without the
offeror’s acceptance of the offeree’s terms, the parties never-
theless act as if a contract has been formed, the terms of their
agreement are determined by § 2-207(3) of the U.C.C., as set
forth in Wisconsin Statute § 402.207(3).” Id. In this case, the
parties acted as if a contract was formed, and defendant’s
acceptance of the agreement was evidenced by its instructions
to plaintiff regarding production of the parts, and its failure
to object to plaintiff’s conduct and statements indicating that
it was performing on the parties’ contract.
No. 08-3282 13
1. Boards—Specially Manufactured Goods
The magistrate judge held that the parties’ oral contracts
for the USB and HUB boards were not subject to the
Statute of Frauds because the boards were specially
manufactured goods. Wisconsin Statute § 402.201(3)(a)
states,
(3) A contract which does not satisfy the requirements
of sub. (1) but which is valid in other respects is
enforceable:
(a) If the goods are to be specially manufactured
for the buyer and are not suitable for sale to others
in the ordinary course of the seller’s business
and the seller, before notice of repudiation is
received and under circumstances which reason-
ably indicate that the goods are for the buyer, has
made either a substantial beginning of their manu-
facture or commitments for their procurement . . . .
Wis. Stat. § 402.201(3)(a).
Defendant argues that the magistrate judge erred in
applying § 402.201(3)(a) because the record does not
show either that the goods were actually manufactured
or that the boards were specially designed. Both of these
arguments fail.
As to defendant’s first argument, the record reflects
that Edmonds testified multiple times that the goods
were manufactured. For example, plaintiff’s counsel
directly asked Edmonds, “And were the items manufac-
tured?” to which Edmonds responded, “Yes.” Later,
14 No. 08-3282
Edmonds and his counsel had the following exchange
regarding defendant’s order for 1,000 USB boards:
Q. Did you complete the manufacturing process?
A. We completed the manufacture of those boards.
Q. And are those items in existence today?
A. They are in existence.
Q. And has ReMapp paid for the component parts?
A. We have.
Edmonds also testified that, in total, plaintiff had manu-
factured 2,000 USB boards and 2,000 HUB boards.
Finally, the court asked Edmonds directly whether
the manufacturing was completed on the goods, and
Edmonds explained that “the boards are fabricated but
the components aren’t on the boards.”
As to whether the goods were specially made, Edmonds
testified that the boards were manufactured to fit defen-
dant’s specific design. He further testified that they
could not have been used by any other company. More-
over, Edmonds testified that the boards had defendant’s
proprietary design and plaintiff would have no reason to
give them to anyone without permission. The evidence
cited by defendant on appeal does not refute this evi-
dence. Afifi testified that he had problems with some of
the previous boards he received. As a result, he had to
desolder a wire, clean the holes and solder a resistor
onto the board. However, nothing about Afifi’s testimony
identifies the wire as the uniquely manufactured part
of the board, or that the replacement of the wire would
No. 08-3282 15
change the nature of the board, such that it would not
have been defendant’s specific design.
Accordingly, this court rejects defendant’s argument
that the district court erred in finding that the boards
were specially manufactured goods.
2. The Microprocessors—Written Notice
The district court also held that the parties’ contract
for microprocessors was enforceable despite the absence
of a writing. Wisconsin Statute § 402.201(2) states:
(2) Between merchants if within a reasonable time a
writing in confirmation of the contract and sufficient
against the sender is received and the party receiving
it has reason to know its contents, it satisfies the
requirements of sub. (1) against such party unless
written notice of objection to its contents is given
within 10 days after it is received.
Wis. Stat. § 402.201(2). Defendant argues that the district
court erred in applying this section because the docu-
ment at issue was not a confirmation of the order, but
rather was an offer requiring a response.
Initially, it is important to note that defendant’s argu-
ment is moot. The district court ultimately did not award
plaintiff any relief for defendant’s breach of the micro-
processor contract. Thus, even if this court were to
reverse the district court on these grounds, there is no
other relief defendant could obtain on this issue. See
Grinnell Mut. Reinsurance Co. v. Reinke, 43 F.3d 1152, 1154
16 No. 08-3282
(7th Cir. 1995) (“Litigants who take offense at statements
in an opinion, or who believe that the judge committed a
legal error, but who cannot show how the judgment
injured them in a way the court of appeals can correct,
are not proper appellants.”).
However, even if we assumed defendant’s argument is
not moot, it would be rejected. Defendant cites Kline
Iron and Steel Co. Inc. v. Gary Communications Consultants,
Inc., 715 F. Supp. 135 (D.S.C. 1989), to support its argu-
ment that the invoice at issue is not a writing in confirma-
tion of the contract. In that case, the plaintiff sent the
defendant a document entitled “Proposal” which stated in
part that “This proposal is for immediate acceptance and
prior to such acceptance is subject to modification or
withdrawal without notice,” and that, “Acceptance of this
proposal will evidence Buyer’s intent that the sale be
governed solely by the terms and conditions of this pro-
posal.” Id. at 136-37. Six days after receiving the proposal,
the defendant informed the plaintiff that the defendant
had received a lower quote and indicated it wanted the
plaintiff to justify its higher price. Id. at 137. The plaintiff
sued the defendant for breach of an oral contract. Id. The
plaintiff invoked a provision virtually identical to
§ 402.201(2) arguing that the contract was enforceable
because the proposal constituted a confirmation of the
oral contract. Id. at 141. The court found that the oral
agreement did not come within this exception because
the proposal expressly required further action by the
defendant and was not binding on the plaintiff. Id. at 141-
42. The court remarked that “[i]n order to be a confirma-
No. 08-3282 17
tion . . . a writing must at least indicate that a binding or
completed transaction has been made.” Id. at 142 (quota-
tion marks omitted).5
This case differs significantly from Kline Iron. First,
the invoice at issue makes no express requirement that
plaintiff take further action for the agreement to be con-
summated. Rather, the invoice requires 100% payment “at
time of purchase.” This does not necessarily mean
100% payment is the acceptance of the offer. Second, unlike
the proposal in Kline Iron, the invoice does not indicate
that plaintiff could modify or withdraw the offer prior
to the acceptance. As a result, the language of the invoice
is far less clear than that of the proposal in Kline Iron.
Third, unlike the parties’ activities in Kline Iron, here
both parties acted as if a contract had been formed despite
the lack of initial payment, and Edmonds testified that
after speaking to Afifi he “went out and put in an order
and contracted for 4,100 parts”, thereby refuting the
possibility that Edmonds intended the invoice as an
offer he could modify.
The evidence also supports the magistrate judge’s
finding that defendant received written notice of the
microprocessor order and made no objection within ten
days. The record contains the invoice, dated July 19, 2006,
5
Defendant also cites First Bank (N.A.) v. H.K.A. Enterprises, Inc.,
515 N.W.2d 343 (Wis. Ct. App. 1994) to support its argument.
However, the court explicitly refused to rule on the § 402.201(2)
issue because the issue was not raised before the trial court.
Id. at 347 n.10.
18 No. 08-3282
issued to defendant for 4,100 “Cypress U4” at $5.85. In
addition, Edmonds testified that Afifi never informed
him that he did not want the microprocessors or that there
was any indication that Afifi would not make pay-
ment until he received an e-mail from Afifi in Septem-
ber 2006. As such, this court cannot find that the
magistrate judge’s ruling that § 402.201(2) applied to the
microprocessor contract was clearly erroneous.
C. Amount of Damages
Defendant also argues that the district court erred in
awarding damages to plaintiff because there was no
proof of loss. In this regard, defendant asserts that
Edmonds’ testimony as to damages lacked the requisite
specificity. Defendant points to disparities in Edmonds’
testimony regarding plaintiff’s out of pocket expenses,
and the amount plaintiff had contracted to pay for the
parts. However, Edmonds’ failure to clarify what plain-
tiff had paid for the boards to date or how much its
supplier charged is of little significance. As discussed
above, the court had proof from Edmonds’ testimony
that the boards were manufactured, that the parties
agreed to the prices set forth on the invoices, and that
defendant failed to pay for the boards.
Wisconsin Statute § 402.709 states that,
When the buyer fails to pay the price as it becomes due
the seller may recover . . . the price . . . [o]f goods
identified to the contract if the seller is unable after
reasonable effort to resell them at a reasonable price
No. 08-3282 19
or the circumstances reasonably indicate that such
effort will be unavailing.
Wis. Stat. § 402.709(1)(b). Here, the magistrate judge
found that the parties had a contract and had agreed to
the price listed in the invoices. In addition, the magistrate
judge found that the goods were specially manufactured
pursuant to the parties’ contract such that any effort to
resell them would be unavailing, and that the boards
had been ordered and manufactured. This was supported
by Edmonds’ testimony to that effect. Moreover,
Edmonds testified that defendant had never paid the
contract price at issue. As such, this court cannot con-
clude the magistrate judge erred in awarding damages
to plaintiff. Accordingly, this argument also is rejected.
D. Assumption of Risk
Defendant’s final argument is that plaintiff assumed the
risk of loss because there were no assurances made to
plaintiff that defendant was committed to actually pur-
chasing the items from plaintiff. Although not entirely
clear, defendant’s main point appears to be that plaintiff
did not act in good faith when it went ahead with pur-
chasing the products without the agreed upon payment,
and should not be allowed damages for goods that were
never delivered.
At oral argument, defendant conceded that it did not
specifically raise this argument before the trial court. “[I]t
is axiomatic that an issue not first presented to the
district court may not be raised before the appellate
20 No. 08-3282
court as a ground for reversal.” Econ. Folding Box Corp. v.
Anchor Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir.
2008) (quotation marks omitted). Defendant did not
discuss good faith, assumption of risk or the unfairness
of not receiving the goods in its pre-trial memorandum,
its proposed findings of fact and conclusions of law or
its post-trial brief before the trial court. Defendant did
make mention of plaintiff’s “commercial foolhardiness,”
but only in the context of its Statute of Frauds argument.
See id. at 720-21 (holding, in the context of waiver, that
a party cannot rely on a general statement made in the
trial court to claim it has raised the specific argument
below). Because “to reverse the district court on grounds
not presented to it would undermine the essential func-
tion of the district court,” id. at 720 (quotation marks
omitted), we do not consider defendant’s final argument.
III. Conclusion
Accordingly, we A FFIRM the district court’s judgment
in favor of plaintiff.
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