411 F.2d 850 (6th Cir. 1969), 18915, Val Decker Packing Co. v. Corn Products Sales Co.

Docket Nº:18915.
Citation:411 F.2d 850
Party Name:VAL DECKER PACKING COMPANY, a Corporation, Plaintiff-Appellant, v. CORN PRODUCTS SALES COMPANY, a Corporation, Defendant-Appellee.
Case Date:June 09, 1969
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 850

411 F.2d 850 (6th Cir. 1969)

VAL DECKER PACKING COMPANY, a Corporation, Plaintiff-Appellant,

v.

CORN PRODUCTS SALES COMPANY, a Corporation, Defendant-Appellee.

No. 18915.

United States Court of Appeals, Sixth Circuit.

June 9, 1969

Robert P. Bartlett, Jr., Dayton, Ohio, for appellant, Estabrook, Finn & McKee, by John O. Henry, Thomas A. Holton, Dayton, Ohio, on the brief.

F. Thomas Green, Dayton, Ohio, for appellee, Pickrel, Schaeffer & Ebeling, Dayton, Ohio, on the brief.

Before WEICK, Chief Judge, and O'SULLIVAN and EDWARDS, Circuit Judges.

WEICK, Chief Judge.

---------- 23 Ohio Misc. 162_----------

We are called upon in this diversity case to determine the applicable Ohio statute of limitations in an action for damages for breach of an implied warranty in the sale of goods by written contract.

In the District Court the defendant contended that the two-year statute of limitations 1 applied, and filed a motion for summary judgment. Plaintiff contended that since the contract of sale was in writing, the fifteen-year statute 2 was applicable.

The District Judge, relying on Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951), applied the two-year statute. He granted defendant's motion for summary judgment and dismissed the complaint. During oral argument of the appeal the Court inquired of counsel as to the applicability of the four-year statute of limitations contained in the Ohio Uniform Commercial Code. 3 This statute had not been brought to the attention of the District Judge, nor had the point been argued or briefed. Counsel were granted additional time to file supplemental briefs.

The complaint was filed on January 10, 1967. Plaintiff alleged that on October 4, 1962 it had entered into a written contract with the defendant, Corn Products Sales Company, under the terms of which Corn Products agreed to install certain storage facilities and equipment for receiving and storing liquid corn syrup; that Corn Products breached the contract--

'* * * by the improper and defective installation in the storage tank of black iron heating coils which were connected to copper fittings. This improper connection caused electrolysis and deterioration of these connections and thereby allowed moisture and bacteria into the corn syrup which was stored in such tank.'

Plaintiff was in the meat processing and packing business in Piqua, Ohio, and used the corn syrup as an ingredient in its meat products. It alleged that due to the presence of moisture and bacteria in the storage tank the corn syrup used in the meat products became spoiled, thereby damaging the meat products. As a result of Corn Products' alleged breach of the contract, plaintiff alleged that it had been damaged in the amount of $25,504.91, for which amount it prayed judgment.

In its answer Corn Products admitted that it had entered into a contract with plaintiff, but denied that it had breached the contract or that plaintiff was proximately damaged. Corn Products further alleged as an affirmative defense that the action was not brought within the Ohio two-year statute of limitations applicable to injuries to personal property. Corn Products alleged default in payments on the contract and counterclaimed for $900.11, the unpaid balance alleged to be due and owing.

Plaintiff's answers to defendant's interrogatories established that the...

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