Harris Corp. v. Mallicote

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is a diversity action, 28 U.S.C. § 1332(a)(l), (c) under the Uniform Commercial Code, T.C.A. § 47-2-709(1)(a), for the recovery of the price of goods (machinery) sold and bought. The plaintiff moved for a summary judgment on the issue of liability, Rules 56(a), (c), Federal Rules of Civil Procedure. A magistrate recommended that such motion be granted, 28 U.S.C. § 636(b)(l)(B).

Such recommendation was filed with the Court, and a copy was mailed on June 26, 1980 to all parties. 28 U.S.C. § 636(b)(1)(C). No timely written objection thereto was served. 28 U.S.C. § 636(b)(1). Such recommendation hereby is ACCEPTED. Idem.

The buyer failed to pay all the price for such machinery as it became due; therefore, the seller is entitled to recover from the buyer the price of the machinery which was accepted by the buyer, T.C.A. § 47-2-709(1)(a), supra, at the contract rate for the machinery, T.C.A. § 47-2-607(1). Whether the buyer is entitled to a recovery under its counterclaim herein is a matter for determination along with the other issue of the amount of the damages of the plaintiff.

Interlocutory judgment will enter that the plaintiff have judgment that the defendants are liable to it. Rule 56(c), Federal Rules of Civil Procedure. Trial will proceed on the amount the plaintiff is to recover from the defendants and the amount under the counterclaim of any deduction from the price as damages, T.C.A. § 47-2-717, for any nonconformity of the machinery to the contract of the parties, T.C.A. §§ 47-2-607(2) — 47-2-714(1), inclusive, and any damages for breach in regard to the accepted goods, T.C.A. § 47-2-714, or incidental and consequential damages, T.C.A. § 47-2-715. Rule 56(d), Federal Rules of Civil Procedure.