Afram Export Corp. v. Metallurgiki Halyps, SA
| Decision Date | 02 August 1984 |
| Docket Number | No. 80-C-0262.,80-C-0262. |
| Citation | 592 F. Supp. 446 |
| Parties | AFRAM EXPORT CORP., a Wisconsin corporation, Plaintiff, v. METALLURGIKI HALYPS, S.A., a foreign corporation, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Walter F. Kelly, Milton Shinken, Shinken & Shinken, Milwaukee, Wis., for plaintiff.
Michael Bowen, Foley & Lardner, Milwaukee, Wis., John H. Gross, Anderson, Russell, Kill & Olick, P.C., New York City, for defendant.
DECISION AND ORDER
This is a suit for breach of contract wherein plaintiff, a Wisconsin scrap processor and dealer alleges a contract for the purchase of approximately 15,000 tons of shredded iron scrap to a Greek steel producer. The purchase was never consummated and plaintiff sued. Defendant filed a counterclaim.
On November 26, 1980, the Court denied defendant's motion for dismissal for lack of personal jurisdiction and insufficiency of service of process after finding that the defendant had purposely availed itself of the privilege of conducting business in Wisconsin by sending a surveyor, who the Court found to be the defendant's agent, to Wisconsin to inspect the scrap. Thereafter defendant sought reargument and reconsideration, or in the alternative, certification for appeal under Section 1292(b). These requests were rejected by the Court in an order dated May 28, 1981, and the case moved forward through protracted discovery characterized by a great deal of delay, bickering and disputation.
Ultimately trial was held to the Court on October 13, 14, 15, and 19, 1982. There were numerous delays in submitting post-trial briefs and proposed findings, but all have now been in for some time and the matter is due for decision.
At the outset of the trial, plaintiffs moved to dismiss defendant's counterclaim for failure of the defendant to provide discovery. The Court took this matter under advisement pending the trial. Now, the Court having heard the evidence and the defendant having offered no testimony in regard to George Anastassopoulos' refusal to submit to a deposition in New York as ordered, the Court does grant the motion to dismiss defendant's counterclaim with prejudice. The following shall constitute the Court's findings of fact and conclusions of law regarding the complaint pursuant to Rule 52 of the Federal Rules of Civil Procedure:
Plaintiff, Afram Export Corporation, a Wisconsin corporation (hereinafter Afram), is a dealer in export contracts for the sale of steel and other metal scraps. It is a wholly-owned subsidiary of Afram Brothers Company, likewise a Wisconsin corporation, and both firms have their offices and principal place of business in Milwaukee. Yet another company associated with the above two was Afram Metal Processing Company, Inc., which concentrates on shredding old automobiles and sheet scrap. It also has its office in Milwaukee. Principals Zeke Afram, Israel Afram and Lennard Afram were all officers in the three corporations and active during the events at issue. Zeke Afram died prior to the time of the trial.
Defendant Metallurgiki Halyps, S.A. (hereinafter Halyps), is a Greek corporation engaged in the business of manufacturing steel from scrap. Its offices are located in Athens, Greece, and its principal officer at the time of the trial was George Anastassopoulos.
During 1979 a Paminos Anastassopoulos, son of George Anastassopoulos, and an officer of defendant corporation, was in the United States buying scrap steel to supply his firm's steelmaking operations: In February of that year, Afram had received a telephone call from a Mr. Gratsos in New York. Mr. Gratsos was an old acquaintance of Israel Afram. He apparently was an employee of the Onassis shipping operation in the office of the Victory Carrier super tanker, and in several visits urged upon Israel Afram that Metallurgiki Halyps used a lot of shredded scrap and might be an excellent long term customer for Afram.
After some preliminary conversations on the telephone with Paminos Anastassopoulos, Afram received a telex dated February 9, 1979, from Halyps which read as follows:
(Plf. Ex. 4). On February 10, 1979, Afram responded with a telex:
Shipment: April 1979. If buyer does not provide a vessel by May 15, 1979, seller shall be permitted to draw 50 (fifty) percent of letter of credit.
Thus the buyer said (Plf. Ex. 4) ... "we confirm having purchased ..." on February 9; the seller on February 10 said (Plf. Ex. 5) ... "we confirm sale to you ..." Defendant's brief calls plaintiff's exhibit 5 a counteroffer. It sounds to the Court like an acceptance. If there is any doubt as to the existence of a binding contract for the sale of goods, it is surely obliterated by the telex which Halyps sent back to Afram on February 15, 1979, (Plf. Ex. 6) wherein the buyer said:
Mr. Anassaopoulos who is abroad, informed us that you can consider the order booked ..." and did not change any of the detailed specifications of Afram's telex of February 10.
Section 402.201(1) Wis.Stats., provides that, under Wisconsin's Uniform Commercial Code, a contract for the sale of goods is unenforceable unless there is "some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker." The official UCC Comment to this section makes it clear that:
Only three definite and invariable requirements as to the memorandum are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be "signed," a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity.
It is the Court's opinion and express finding that with the exchange of the above telex messages the parties had brought into being a valid binding contract. Those variances which did exist as to certain detail terms, i.e., Halyps use of the term "clean shredded scrap" as contrasted to Aframs "shredded scrap to SIS Code # 211 and Halyps "15,000 tons" to Afram's "13,000 to 15,000 M.T." cease to be variances after Halyp's telex of February 15 (Plf. Ex. 6) since under Section 402.207 Wis.Stats. the Wisconsin version of the UCC provides:
The figures in Afram's telex of February 10 would be construed as proposals for additions to the contract, agreed to by Halyp's telex of February 15.
Having arrived at a contract, the most immediate concern of the parties was the financial arrangements for payment. Payment was to be in United States dollars (Plf. Ex. 5) to the account of Afram Export Corporation. This required an irrevocable letter of credit and the submission of a pro-forma invoice, the latter being necessary so that it could be submitted to the Greek government to obtain the requisite amount of currency clearance for the letter of credit.
Arrangements for seeing that 15,000 tons of scrap was shredded and on hand; that it was transported from the yard at 260 North 12th Street, Milwaukee, Wisconsin, to the loading dock at 900 South Water Street, Milwaukee; that a vessel was there to load it without delay; and as to what compensation would be paid to Afram if the buyer could not pick up the load by May 15, 1979; as well as details respecting payment, were all discussed and dealt with in the telexes which passed between the parties in the period from February 15 through March 17. (...
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Afram Export Corp. v. Metallurgiki Halyps, S.A.
...Egyptian purchaser. After a bench trial, the district judge gave judgment, for Afram for $425,149 and dismissed the counterclaim. 592 F.Supp. 446 (D.Wis. 1984), Metallurgiki has appealed from the judgment for Afram, and Afram has cross-appealed, contending that the judge should have given i......