333 F.Supp. 1183 (E.D.Mo. 1971), 70 C 513 3, Binkley Co. v. Teledyne Mid-America Corp.
|Docket Nº:||70 C 513 3|
|Citation:||333 F.Supp. 1183|
|Party Name:||Binkley Co. v. Teledyne Mid-America Corp.|
|Case Date:||October 18, 1971|
|Court:||United States District Courts, 8th Circuit, Eastern District of Missouri|
Sidel, Sandweiss & Kaskowitz, St. Louis, Mo., Alvin H. Juergensmeyer, Warrenton, Mo., for plaintiff.
Murphy & Kortenhof, St. Louis, Mo., for defendant.
WEBSTER, District Judge.
In this action plaintiff seeks to recover damages alleged to have been suffered upon breach of express and implied warranties made by defendant seller in connection with plaintiff's purchase of certain welding equipment. Suit was originally filed September 14, 1970, in the Circuit Court of Warren County, Missouri, and removed to this court on defendant's petition. Jurisdiction is based upon 28 U.S.C. § 1332. This matter is presently before the court on defendant's motion for summary judgment. In support of its motion, defendant maintains that plaintiff's claim is barred by the statute of limitations as set forth in § 400.2-725, RSMo 1969, V.A.M.S. Defendant also relies on a number of provisions limiting plaintiff's remedies which it contends were contained in the contract of sale.
The material facts necessary to a determination of the limitations issue are not in dispute. Plaintiff is a Missouri corporation engaged in the business of metal processing in Warrenton, Missouri. Defendant is a Delaware corporation, with its principal place of business in Los Angeles, California. Defendant manufactures and sells metal processing equipment, and is the successor by merger to Precision-Cincinnati, Inc., an Ohio corporation, formerly known as Precision Welder & Flexopress Corp. (hereafter "Precision").
For several months prior to December 15, 1965, plaintiff and Precision negotiated for the purchase by plaintiff of certain welding equipment known as a dual roll spot welder, to be specially manufactured by Precision. By letter dated December 15, 1965, Precision quoted a firm specification that the equipment would be capable of welding a minimum of 1000 feet per fifty-minute hour. Plaintiff issued its purchase order for the equipment on December 28, 1965, which likewise specified that the welder must operate at a minimum of 1000 feet per fifty-minute hour. Precision acknowledged the order by letter dated January 7, 1966 which made no reference to the production capacity specification, but which enclosed a copy of the purchase order signed by Precision.
Plaintiff avers that it relied upon the express warranties contained in Precision's December 15, 1965 letter and Precision's implied warranties of merchantability, and purchased the spot welder for a sum in excess of $48,560.00. The welder was delivered to plaintiff on or about September 7, 1966, but plaintiff was not able to install it or put it into operation until on or about October 24, 1966. At this time the equipment only performed at a rate of between 400 and 500 feet per fifty-minute hour instead of the specified rate. Plaintiff notified Precision of the equipment's defects, and thereafter Precision made numerous unsuccessful attempts to...
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