773 F.2d 71 (6th Cir. 1985), 84-5418, Bowater North America Corp. v. Murray Machinery, Inc.

Docket Nº:84-5418.
Citation:773 F.2d 71
Party Name:BOWATER NORTH AMERICA CORPORATION, Plaintiff-Appellant, v. MURRAY MACHINERY, INC., Murray Southern, Inc., Alabama Industrial Fabricators, Inc., Logan R. Ritchie, Jr., and Edgardo Manual Diaz, Defendants-Appellees, and MURRAY MACHINERY, INC., and Murray Southern, Inc., Third-Party Plaintiffs, v. J.M. FOSTER, INC., and Harry Tobey and Hoff Associates
Case Date:September 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

Page 71

773 F.2d 71 (6th Cir. 1985)

BOWATER NORTH AMERICA CORPORATION, Plaintiff-Appellant,

v.

MURRAY MACHINERY, INC., Murray Southern, Inc., Alabama

Industrial Fabricators, Inc., Logan R. Ritchie,

Jr., and Edgardo Manual Diaz, Defendants-Appellees,

and

MURRAY MACHINERY, INC., and Murray Southern, Inc.,

Third-Party Plaintiffs,

v.

J.M. FOSTER, INC., and Harry Tobey and Hoff Associates,

Third-Party Defendants-Appellees.

No. 84-5418.

United States Court of Appeals, Sixth Circuit

September 16, 1985

Argued March 6, 1985.

Page 72

James R. Buckner, Miller & Martin, Raymond R. Murphy (argued), Chattanooga, Tenn., for plaintiff-appellant.

Carl Ricciardi, Ruder, Ware, Michler & Forester, Wausau, Wis., Ferber W. Tracy, (argued), Spears, Moore, Rebman & Williams, Joe E. Manuel (argued), Leitner, Warner, Owens, Moffitt, Williams & Dooley, Don W. Poole, Bean, Poole, Lawrence & Thornbury, Chattanooga, Tenn., Logan R. Ritchie, Jr., Edgardo M. Diaz, Birmingham, Ala., W. Neil Thomas, Thomas, Mann & Gossett, George L. Foster, Hall, Haynes, Lusk & Foster, Richard R. Ruth, Jr., Luther, Anderson, Cleary & Ruth, James Milam (argued), Chattanooga, Tenn., for defendants-appellees.

Before KEITH and MARTIN, Circuit Judges, and TAYLOR, [*] District Judge.

KEITH, Circuit Judge:

The plaintiff Bowater North American Corporation (Bowater) appeals from an order of dismissal entered on May 4, 1984 by the United States District Court for the Eastern District of Tennessee, 604 F.Supp. 821, then District Judge H. Theodore Milburn presiding.

In the action below, Bowater had filed suit, alleging negligent breach of contract and breach of warranty, for defects in a long log crane. The crane was designed by defendants Logan Ritchie (Ritchie) and Edgardo Diaz (Diaz); fabricated, in part, by defendant Alabama Industrial Fabricators, Inc. (AIF); and sold by defendant Murray Machinery, Inc. and/or Murray Southern, Inc. (Murray). The district court dismissed the action with prejudice based upon a settlement agreement between the parties. On appeal, plaintiff seeks reversal of the dismissal order and remand to the district court for a jury trial on the factual issues, including the alleged defense of accord and satisfaction. For the reasons stated below we affirm the order of the district court.

FACTS

Bowater is a manufacturer of newsprint with an office and mill located in Calhoun, Tennessee. In 1980, Bowater ordered a long log crane from Murray. During installation, Bowater experienced various failures of the crane, which culminated with a suit being filed on November 29, 1982, against Murray, Ritchie and AIF. Subsequently, defendant Diaz was brought in by way of an amended complaint. The suit demanded a jury trial and sought damages for the expenses incurred in repairing the crane and for profits lost during the period the crane was inoperable.

After various proceedings, discussions were held between Bowater and the defendants (chiefly Murray) in an attempt to settle the case. Counsel for Bowater and Murray exchanged several draft agreements and had numerous conversations concerning a settlement. As a result of a meeting held on December 9, 1983, a document styled Settlement Agreement was drafted and executed by Murray, Bowater, AIF, and Harry Toby (third-party defendant)

Page 73

at various times thereafter. See Jt.App. at 90-129.

In pertinent part, the settlement agreement provided:

WHEREAS, Murray has agreed to pay to Bowater the sum of Two Hundred Fourteen Thousand and No/100 Dollars ($214,000) in cash; 1 has agreed to sell to Bowater such of its products and replacement parts from Murray's product line as Bowater shall, from time to time, select and has agreed to provide Bowater credit of Two Hundred Eighty-Six Thousand and No/100 Dollars ($286,000) as against said future purchases which are to be credited at 10% off Murray's standard sales price for like products; and

WHEREAS, Bowater has agreed to make said purchases as soon as possible and in no event more than thirty-six (36) months of the date of signing.

WHEREAS, Alabama and Foster have agreed to pay Twenty-Five Thousand and No/100 Dollars ($25,000) each to Bowater; and

WHEREAS, Bowater and Murray agree that any dispute regarding the credits to be provided under this agreement shall be resolved in accordance with and pursuant to the construction industry arbitration rules of the American Arbitration Association and that any such determination shall be binding;

NOW, THEREFORE, for and in consideration of the mutual promises and releases given by the parties to this Agreement and in consideration of the payment by Murray, Alabama and Foster to Bowater of the total amount of Two Hundred Sixty-Four Thousand Dollars ($264,000) in cash and the agreement by Murray to sell its products to Bowater and to provide future credits against such sales in the amount of Two Hundred Eighty-Six Thousand Dollars ($286,000) as set forth above, the parties to this agreement hereby agree as follows:

  1. (a) All parties hereto mutually release and discharge all other parties hereto and their respective officers, employees, members of their Board of Directors, their heirs, successors and assigns, from all claims of any kind and character, all...

To continue reading

FREE SIGN UP