Bowater North America Corp. v. Murray Machinery, Civ. No. 1-82-520.

• Decision Date: 04 May 1984
• Docket Number: Civ. No. 1-82-520.
• Citation: 604 F. Supp. 821
• Court: U.S. District Court — Eastern District of Tennessee
• Parties: BOWATER NORTH AMERICA CORPORATION, Plaintiff, v. MURRAY MACHINERY, INC., Murray Southern, Inc., Alabama Industrial Fabricators, Inc., Logan R. Ritchie, Jr., and Edgardo Manuel Diaz, Defendants, and MURRAY MACHINERY, INC. & Murray Southern, Inc., Third-Party Plaintiffs, v. J.M. FOSTER, INC., Harry Tobey and Hoff and Associates, Third-Party Defendants.

604 F. Supp. 821

BOWATER NORTH AMERICA CORPORATION, Plaintiff, v. MURRAY MACHINERY, INC., Murray Southern, Inc., Alabama Industrial Fabricators, Inc., Logan R. Ritchie, Jr., and Edgardo Manuel Diaz, Defendants, and MURRAY MACHINERY, INC. & Murray Southern, Inc., Third-Party Plaintiffs, v. J.M. FOSTER, INC., Harry Tobey and Hoff and Associates, Third-Party Defendants.

Civ. No. 1-82-520.

United States District Court, E.D. Tennessee, S.D.

May 4, 1984.

Raymond R. Murphy, Jr., James R. Buckner, Miller & Martin, Chattanooga, Tenn., for plaintiff.

Logan R. Ritchie, Jr., Consulting Engineer, P.C.; W.B. Luther, Luther, Anderson, Cleary & Ruth, Chattanooga, Tenn., for J.M. Foster, Inc.

W. Neil Thomas, III, Thomas, Mann & Gossett, P.C., Chattanooga, Tenn., for third-party defendant Dr. Harry G. Tobey.

George L. Foster, Hall, Haynes, Lusk & Foster, Chattanooga, Tenn., for third-party defendant pro se Hoff & Associates.

Edgardo Manuel Diaz, pro se.

R. Vann Owens, Leitner, Warner, Owens, Moffitt, Williams & Dooley, Chattanooga, Tenn., for Alabama Industrial Fabricators, Inc.

W. Ferber Tracy, and Mark Ramsey, Spears, Moore, Rebman & Williams, Chattanooga, Tenn., Ruder, Ware, Michler & Forester, S.C., Wausau, Wis., for Murray Machinery, Inc. and Murray Southern, Inc.

MEMORANDUM

MILBURN, District Judge.

This cause is presently before the Court for interpretation of a Settlement Agreement and Release (hereinafter, agreement) which was prepared by the parties to settle and compromise disputes arising out of the purchase of a long log boom by Bowater North America Corporation (hereinafter, Bowater) from Murray Machinery, Inc. and Murray Southern, Inc. (hereinafter, Murray). The present dispute is over the method of calculating a cash settlement and future credits to be provided to Bowater in its purchases of Murray products.

The part of the agreement with which the present controversy is concerned reads as follows:

WHEREAS, Murray has agreed to pay to Bowater the sum of Two Hundred Fourteen Thousand and No/100 Dollars ($214,000) in cash; 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. (emphasis added)

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: ...

Bowater contends that the language "which are to be credited at 10% off Murray's standard sales price for like products" means that Bowater is going to get its next $286,000 worth of parts and equipment purchases from Murray without charge. Furthermore, the price Bowater will be charged for this equipment, for the purpose of applying the credits against the price, will be 10% less than Murray's list price. For example, if Bowater...