460 F.2d 276 (8th Cir. 1972), 71-1673, Binkley Co. v. Teledyne Mid-America Corp.

Docket Nº:71-1673.
Citation:460 F.2d 276
Party Name:The BINKLEY COMPANY, Appellant, v. TELEDYNE MID-AMERICA CORPORATION, Appellee.
Case Date:June 01, 1972
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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460 F.2d 276 (8th Cir. 1972)

The BINKLEY COMPANY, Appellant,

v.

TELEDYNE MID-AMERICA CORPORATION, Appellee.

No. 71-1673.

United States Court of Appeals, Eighth Circuit.

June 1, 1972

Submitted May 9, 1972.

Jerome I. Kaskowitz, Sidel, Sandweiss & Kaskowitz, St. Louis, Mo., for appellant.

Edward E. Murphy, Jr., Murphy, Kortenhof & Ely, St. Louis, Mo., for appellee.

Before MATTHES, Chief Judge, VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY, Circuit Judge.

MATTHES, Chief Judge.

This is an appeal in a diversity case, originally filed in state court and then removed under 28 U.S.C. § 1441 et seq. Plaintiff Binkley Company is a Missouri Corporation. Defendant Teledyne is successor by merger to Precision Welder & Flexopress Corp. (Precision), which was headquartered in Cincinnati, Ohio, with an office in St. Louis, Missouri.

By letters between Precision's Ohio office and Binkley's Missouri office, the parties negotiated the sale by Precision to Binkley of a welder for a sum in excess of $48,560.00. By express warranty, Precision guaranteed the welder could perform a precise number of welds per minute in order to fit Binkley's production

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plans. The machine was delivered on September 8, 1966, and installation by plaintiff was completed on October 24, 1966.

The welder never performed with the desired rapidity and from October, 1966 to February, 1968, defendant's representatives made periodic attempts to repair it. Finally, on September 14, 1970-four years and six days after delivery of the welder-plaintiff filed this suit for damages from the alleged breach of warranty. After discovery, the district court granted summary judgment for the defendant, finding the suit to be time-barred by the applicable Missouri four-year statute of limitations. Binkley Co. v. Teledyne Mid-America Corp., 333 F.Supp. 1183 (E.D. Mo.1971). Plaintiff appealed. We affirm.

The threshold question in this case is choosing the applicable law. Judge Webster decided, and the parties agreed, that Missouri law applies. That conclusion clearly is correct. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); § 400.1-105(1), V.A.M.S.

The applicable Missouri statute of limitations is U.C.C. § 2-275, adopted as § 400.2-725, V.A.M.S. The statute provides that where, as here, the parties have not agreed to...

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