Center Chemical Company v. Avril, Inc.
| Decision Date | 11 April 1968 |
| Docket Number | No. 24403.,24403. |
| Citation | 392 F.2d 289 |
| Parties | CENTER CHEMICAL COMPANY, Appellant, v. AVRIL, INC., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Melvin T. Boyd, Blackwell, Walker & Gray, James E. Tribble, Miami, Fla., for appellant.
Robert Scott Kaufman, Miami, Fla., for appellee.
Before JONES and GODBOLD, Circuit Judges, and SCOTT, District Judge.
Appellee, Avril, Inc., in a diversity case, sued appellant, Center Chemical Company, for breach of a written requirements contract of June 3, 1957. In the contract Avril agreed to sell to Center for twenty years certain enumerated commercial cleaning products "at its published list price less a discount of 45%", and gave Center the exclusive right to sell these products within the State of Florida. In return, Center agreed to buy only from Avril and to limit its sales to Florida. The contract was in force for slightly over four years before the breach occurred. Avril seeks damages for loss of future profits for the remaining sixteen years. The jury returned a verdict for Avril in the amount of $32,000.00.
Avril agreed that its published list price, which was to be used in determining the price to be paid by Center should be competitive with the list price of two of its competitors, DuBois and Economics, for comparable products. The contract further provided for the restriction and termination of Center's exclusive rights if its volume of sales did not meet certain specific monthly minimums.
On September 12, 1961, Center stopped purchasing from Avril. This action constituted a breach of contract. Appellant does not dispute this finding.
In attempting to prove its damages for loss of prospective profits, appellee relied almost entirely upon the testimony of its accountant, Richard Yotter, whose testimony was limited to an evaluation of Avril's net profits from sales to appellant during the four years that the contract was in force. Yotter arrived at his gross figure for each of these years by subtracting the cost of the goods to Avril from the price at which they were resold to Center. Then an arbitrary fifty dollar per year figure was deducted from the gross profit in order to arrive at the net figure. The fifty dollar amount allegedly represented the cost to Avril to service the account but was not supported by any competent substantial evidence. This sparse testimony was all that the jury had upon which to base its verdict.
It being undisputed that Center breached the contract sued upon, the next question is whether or not this evidence was sufficient to enable the jury to properly assess damages for loss of future profits, and whether Florida or Pennsylvania law as to damages is applicable.
The Supreme Court, in Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), held that in a diversity suit the federal court is bound to follow the conflict of laws rules prevailing in the state in which it is sitting. The applicable conflicts rules to be followed in contract cases were settled by the Supreme Court of Florida in Walling v. Christian & Craft Grocery Co., 41 Fla. 479, 27 So. 46, 49, 47 L.R.A. 608 (1899). There appellant claimed in Florida the status of a femme sole to the extent accorded to her under an Alabama statute by a decree of a chancery court in Alabama. In holding that Florida law was controlling in determining the status of appellant, the Supreme Court of Florida stated:
* * *"
The contract specifically provided that Avril's products were...
To continue reading
Request your trial
-
Eastern Air Lines, Inc. v. McDonnell Douglas Corp.
...held to the traditional rule against speculative or conjectural estimates of damages in contract actions. See Center Chemical Co. v. Avril, Inc., 5 Cir., 1968, 392 F.2d 289, 291.114 Frequently, this may be possible only by means of a curative instruction given to the jury after the expert h......
-
Ideal Structures Corp. v. Levine Huntsville Develop. Corp.
...provision mandating a "most significant relationship" test as that relied on by Chief Judge Lynne. See also Center Chemical Co. v. Avril, Inc., 5 Cir. 1968, 392 F.2d 289 No. 24403, April 11, In Hopkins v. Lockheed Aircraft Corp., 5 Cir. 1966, 358 F.2d 347, our Circuit elected to certify a c......
-
Donovan v. Walton
...the DoL herein are not ordinarily included in calculating damage awards in breach of contract actions, see Center Chemical Co. v. Avril, Inc., 392 F.2d 289, 290-91 (5th Cir.1968) (relying on Hodges v. Fries, 34 Fla. 63, 15 So. 682, 684 (1894)). Likewise, the Internal Revenue Code does not r......
-
Gorsalitz v. Olin Mathieson Chemical Corporation
...apply the conflict rules of Texas. Klaxon Co. v. Stentor Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Center Chemical Co. v. Avril, Inc., 5 Cir. 1968, 392 F.2d 289. We agree with the district court, and both parties are in accord, that the interpretation of a contract executed in ......
-
Doing Equity in Bankruptcy
...1900) (natural gas for house); Spielman v. Sigrist, 72 N.Y.S.2d 861, 862 (N.Y. Sup. Ct. 1947) (cigarettes); Ctr. Chem. Co. v. Avril, Inc., 392 F.2d 289, 290 (5th Cir. 1968) (commercial cleaning products); Feld v. Henry S. Levy & Sons, Inc., 335 N.E.2d 320, 323 (N.Y. 1975) (bread crumbs). 28......