US Durum Milling, Inc. v. Frescala Foods, Inc., No. 89-1697C(6).

CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
Writing for the CourtFairfax Jones, Mark Brittingham, Casserly & Jones, St. Louis, Mo., for defendant
Citation785 F. Supp. 1369
PartiesU.S. DURUM MILLING, INC., Plaintiff, v. FRESCALA FOODS, INC., Defendant.
Decision Date04 March 1992
Docket NumberNo. 89-1697C(6).

785 F. Supp. 1369

U.S. DURUM MILLING, INC., Plaintiff,
v.
FRESCALA FOODS, INC., Defendant.

No. 89-1697C(6).

United States District Court, E.D. Missouri, E.D.

March 4, 1992.


785 F. Supp. 1370

Bill Bay, Charles M. Poplstein, Joseph R. Dulle, Thompson & Mitchell, St. Louis, Mo., for plaintiff.

Fairfax Jones, Mark Brittingham, Casserly & Jones, St. Louis, Mo., for defendant.

MEMORANDUM

GUNN, District Judge.

This matter is before the Court on the merits of plaintiff's claims after a one day non-jury trial. The Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, and being fully advised in the premises, makes the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. Fed. R.Civ.P. 52.

FINDINGS OF FACT

1. Plaintiff U.S. Durum Milling, Inc. is a Minnesota corporation with its principal place of business located in St. Louis, Missouri. Plaintiff is engaged in the business of selling processed grain and flour products for use in manufacturing of food goods.

2. Defendant Frescala Foods, Inc. is a Texas sub-chapter S corporation with its principal place of business located in San Antonio, Texas. Defendant is engaged in the business of manufacturing fresh pasta to sell to grocery stores.

3. On June 16, 1988, Justin Arecchi, president of defendant, telephoned Franco Musumeci, the Feed Ingredient Manager at plaintiff, in St. Louis, Missouri in order to inquire as to plaintiff's ability to provide sufficient quantities of flour at a price agreeable to defendant. In response to this conversation, Musumeci agreed to supply defendant with a sample of its product.

4. On June 22, 1988, Musumeci express mailed a twenty pound package of Durum-Patent flour to defendant's office in San Antonio, Texas.

5. After performing tests on the sample flour and determining the product was acceptable, defendant decided to place an order with plaintiff.

6. On June 29, 1988, Arecchi telephoned Musumeci and placed a bid to purchase 750,000 pounds of flour during July 1988 through September 1988. After discussing the terms of the proposed contract, Musumeci

785 F. Supp. 1371
quoted Arecchi the price of $18.81 per one hundred pounds of flour and thereafter Arecchi placed an order to purchase 750,000 pounds of flour at the $18.81 price. Musumeci accepted Arecchi's order and mailed a written confirmation to defendant's office. This contract is known as the Contract of Sale No. 1438 (1438 contract)

7. Under the terms of the 1438 contract, defendant agreed to purchase and plaintiff agreed to sell 750,000 pounds of Durum-Patent flour at the price per one hundred pounds of $18.81 during the period beginning in July 1988 and terminating on September 30, 1988.

8. Between July 19, 1988 and September 28, 1988, defendant took delivery of 342,400 pounds of flour pursuant to the 1438 contract. Defendant arranged for trucks to come to St. Louis and pick up the flour and deliver the flour in San Antonio. Defendant failed to take delivery of the remaining 407,600 pounds of flour.

9. On August 10, 1988, Arecchi telephoned plaintiff concerning the purchase of an additional 1,000,000 pounds of Durum-Patent flour. After discussing the delivery period and the availability of the product, Musumeci quoted to Arecchi the price of $19.24 per one hundred pounds and thereafter Arecchi placed a bid to purchase an additional 1,000,000 pounds of flour at the $19.24 price to cover the time period from October 1988 through December 1988. Musumeci accepted defendant's bid over the telephone in St. Louis and on the same day he mailed a confirmation to defendant. This contract is known as Contract of Sale No. 1483 (1483 contract).

10. Under the terms of the 1483 contract, defendant agreed to purchase and plaintiff agreed to sell 1,000,000 pounds of Durum-Patent flour at the price per one hundred pounds of $19.24 during the period beginning October 1, 1988 and ending on December 31, 1988. Defendant failed to take delivery of any of the flour covered by the 1483 contract. After signing the 1483 contract, plaintiff billed defendant for flour delivered under the 1438 contract at the 1438 contract price. Musumeci testified that a typical industry practice is for parties to enter into a series of three month contracts such as the contracts at issue in this case.

11. Musumeci offered the only testimony at trial as to the fair market value of the goods covered by the two contracts. His unrebutted testimony established that the fair market value of Durum-Patent flour of the same type and quality as stated in the 1438 contract was $17.32 per one hundred pounds on or about September 30, 1988 and in the 1483 contract was $15.51 per one hundred pounds on or about December 31, 1988. He further testified that the practice of using the time of delivery as intended by the parties, in this case the expiration date of the contracts, is the one customarily used in the industry.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1332, in that the amount of all claims alleged in the complaint filed in this case exceeded $50,000.00 and plaintiff and defendant are citizens of different states. Personal jurisdiction herein is based on Mo.Rev.Stat. § 506.500(2) (1986), in that defendant entered into two contracts within the State of Missouri.

2. On February 7, 1991, the Court granted partial summary judgment in favor of plaintiff on Count II of its complaint, a suit on account, in which plaintiff sought recovery of $40,712.40 and interest thereon in the amount of nine per cent (9%) per annum from September 28, 1988 to the date of judgment for 342,400 pounds of flour delivered to defendant pursuant to the 1438 contract.

3. With respect to the application of the long arm statute, plaintiff contends that either of two prongs, the transaction of any business or the making of a contract within the state, applies to this case. The Court finds it unnecessary to reach the transaction of business prong of the long arm statute because the contract prong is once again clearly satisfied.

4. A contract is made in Missouri if the final act which gives rise to a

785 F. Supp. 1372
binding agreement occurs within this state. See Shady...

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7 practice notes
  • Austin Hardware & Supply, Inc. v. SFI of Tennessee, LLC, Case No. 11-CV-00485-W-FJG
    • United States
    • U.S. District Court — Western District of Missouri
    • August 9, 2011
    ...made when plaintiff accepted defendant's purchase orders in the forum state); U.S. Durum Milling, Inc. v. Frescala Foods, Inc., 785 F.Supp. 1369, 1372 (E.D.Mo. 1992) (contract made when plaintiff accepted defendant's bid for "a set quantity at a fixed price for delivery during a defini......
  • Angelica Corp. v. Gallery Mfg. Corp., No. 4:95CV01656.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • November 16, 1995
    ...the final act which gives rise to a binding agreement occurs within this state." U.S. Durum Milling, Inc. v. Frescala Foods, Inc., 785 F.Supp. 1369, 1371-72 (E.D.Mo.1992) (citation omitted). In this case, the final act, acceptance, occurred in Missouri when Angelica accepted Gallery's ......
  • C.L. Maddox, Inc. v. Benham Group, Inc., Nos. 95-1824
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 3, 1996
    ...failed to offer proof of an essential element in a breach of contract action, see U.S. Durum Milling, Inc. v. Frescala Foods, Inc., 785 F.Supp. 1369, 1373 (E.D.Mo.1992) (citing Vandever v. Junior College Dist. of Metro. Kansas City, 708 S.W.2d 711, 716 (Mo.App.1986)) (proof of damages is an......
  • Houlihan Trading Co. v. CTI Foods, LLC, 4:21-cv-01030-SRC
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 3, 2021
    ...the plaintiff “accepted [defendant]'s purchase orders at its Missouri office.”); U.S. Durum Milling, Inc. v. Frescala Foods, Inc., 785 F.Supp. 1369, 1372 (E.D. Mo. 1992) (concluding “that the final act binding the parties occurred when [plaintiff] accepted . . . defendant's bid for a set qu......
  • Request a trial to view additional results
7 cases
  • Austin Hardware & Supply, Inc. v. SFI of Tennessee, LLC, Case No. 11-CV-00485-W-FJG
    • United States
    • U.S. District Court — Western District of Missouri
    • August 9, 2011
    ...made when plaintiff accepted defendant's purchase orders in the forum state); U.S. Durum Milling, Inc. v. Frescala Foods, Inc., 785 F.Supp. 1369, 1372 (E.D.Mo. 1992) (contract made when plaintiff accepted defendant's bid for "a set quantity at a fixed price for delivery during a defini......
  • Angelica Corp. v. Gallery Mfg. Corp., No. 4:95CV01656.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • November 16, 1995
    ...the final act which gives rise to a binding agreement occurs within this state." U.S. Durum Milling, Inc. v. Frescala Foods, Inc., 785 F.Supp. 1369, 1371-72 (E.D.Mo.1992) (citation omitted). In this case, the final act, acceptance, occurred in Missouri when Angelica accepted Gallery's ......
  • C.L. Maddox, Inc. v. Benham Group, Inc., Nos. 95-1824
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 3, 1996
    ...failed to offer proof of an essential element in a breach of contract action, see U.S. Durum Milling, Inc. v. Frescala Foods, Inc., 785 F.Supp. 1369, 1373 (E.D.Mo.1992) (citing Vandever v. Junior College Dist. of Metro. Kansas City, 708 S.W.2d 711, 716 (Mo.App.1986)) (proof of damages is an......
  • Houlihan Trading Co. v. CTI Foods, LLC, 4:21-cv-01030-SRC
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 3, 2021
    ...the plaintiff “accepted [defendant]'s purchase orders at its Missouri office.”); U.S. Durum Milling, Inc. v. Frescala Foods, Inc., 785 F.Supp. 1369, 1372 (E.D. Mo. 1992) (concluding “that the final act binding the parties occurred when [plaintiff] accepted . . . defendant's bid for a set qu......
  • Request a trial to view additional results

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