32 F.3d 561 (1st Cir. 1994), 93-2322, Tobe Products of America, Inc. v. Shapiro

Docket Nº:93-2322
Citation:32 F.3d 561
Party Name:TOBE PRODUCTS OF AMERICA, INC., Plaintiff, Appellee, v. Murray SHAPIRO D/B/A Vintage Creations Ltd, Inc., Defendants, Appellants, VINTAGE CREATIONS, LTD, INC. Defendants, Appellants.
Case Date:August 29, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 561

32 F.3d 561 (1st Cir. 1994)

TOBE PRODUCTS OF AMERICA, INC., Plaintiff, Appellee,


Murray SHAPIRO D/B/A Vintage Creations Ltd, Inc., Defendants, Appellants,

VINTAGE CREATIONS, LTD, INC. Defendants, Appellants.

No. 93-2322

United States Court of Appeals, First Circuit

August 29, 1994

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA1 Rule 36 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of Rhode Island [Hon. Ernest C. Torres, U.S. District Judge ]

David B. Wechsler with whom Hirsch Weinig was on brief for appellants.

Thomas A. Tarro, III with whom Fortunato & Tarro was on brief for appellee.



Before Cyr and Stahl, Circuit Judges, and Zobel, [*] District Judge.

STAHL, Circuit Judge.

Following a two-day bench trial, the district court entered judgment in the amount of $55,944.76, plus interest and costs, in favor of plaintiff-appellee Tobe Products of America, Inc., ("Tobe") on its breach of contract claim against defendant-appellant Vintage Creations, Ltd., Inc. ("Vintage"). Vintage challenges this order, asserting that the court erred in making certain underlying factual and mixed fact/law findings. Vintage also argues that the court committed sundry legal errors. We affirm.



Tobe is a Rhode Island importer of glass stones used in the manufacture of jewelry. Vintage is a New Jersey jewelry manufacturer. In early 1991, Vintage entered into a licensing agreement with the New York fashion designer Kenneth Cole in which Cole agreed to lend his name to a new jewelry line Vintage would manufacture and sell. Shortly thereafter, Vintage identified Tobe as a possible source of the stones to be used in this new line. Representatives from Tobe visited Vintage, bringing specimen boards showing the various shapes, sizes, and colors of handmade stones which Tobe could procure from Germany.

On April 24, 1991, Vintage contracted with Tobe to purchase approximately 40,000 stones, in various sizes, styles, and colors, for a price of roughly $100,000. The contract provided for a 5% defect rate, and Tobe agreed to credit Vintage for any defective stones over and above this rate. The parties agreed that Tobe would ship the stones to Vintage in lots whenever Vintage requested shipment, and that Vintage would pay for each shipment within forty-five days. The contract also permitted Vintage to maintain an outstanding credit balance of up to $15,000. On October 31, 1991, Tobe was to ship to Vintage any stones on which delivery had not yet been taken.

Throughout the spring, summer, and early fall of 1991, Vintage requested and accepted shipments of stones from Tobe. It paid its bills on these shipments in a timely manner. Vintage returned a portion of one of these shipments because it did not need the stones until later in the production run and because it had not yet requested that these stones be shipped. Tobe issued Vintage a credit on the returned stones. During this same time period, Vintage informed Tobe on at least one occasion that more than 5% of the stones it had received were of insufficient quality. It did not, however, return any of the allegedly defective stones for credit or replacement.

On October 31, 1991, pursuant to the terms of the contract, Tobe shipped to Vintage all of the stones it then had on hand, together with an invoice for $33,359.63. Vintage made partial payments on this invoice from December 1991 through February 1992, but failed to pay $20,621.85. On November 15, 1991, Tobe received from Germany a late-arriving, final shipment of stones. Upon receiving this shipment, Tobe invoiced Vintage for an additional...

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