assurance, to pay Eastbourne the net proceeds from the sale of the Kearny property.
In sum, at the time Eastbourne entered into that letter agreement, it was affiliated with Refinemet. As a shareholder of Refinemet before its sale, Eastbourne had had an economic interest in, and had stood to benefit by, Refinemet's continued economic viability. In the context of a sale of its stake in Refinemet, it is not reasonable to conclude, and certainly not more probable than not to find, that Eastbourne intended to extend the Agreement on an open-ended basis.
Accordingly, having found that Eastbourne's termination of the contract was, in all respects, proper, and having further rejected Refinemet's arguments that the contract was valid and continuing in effect, the Court turns to the sole issue remaining, namely, the extent of Eastbourne's liability for pre-termination damages. Eastbourne does not dispute its liability for such damages, but contends only that plaintiff has proved no damages because it paid out more than Refinemet has shown was owed.
Cancelled checks issued by Eastbourne in evidence demonstrate that it paid $ 1,423,688.13 pursuant to its obligations under the Agreement, $ 1,134,977.35 of which was paid as reimbursements to Refinemet and $ 288,710.78 of which was paid directly to Refinemet's creditors. Pl. Ex. 90, 92, 230-31; Def. Ex. III, JJJ. By contrast, Refinemet's cancelled and duplicate checks, even assuming that the Court accepts all of them as valid, a gratuitous assumption at best given the circumstances of this case, show that its own disbursements prior to March 8, 1985, for which they would arguably be entitled to indemnity from Eastbourne totals $ 456,917.33, far less than the sums paid out by Eastbourne. Similarly, the sum of all invoices offered by Refinemet as evidence of incurred expenses is $ 843,344.82, again, far short of the amount paid by Eastbourne.
Furthermore, even were Refinemet permitted to combine checks with invoices, a process that would doubtless include instances of double counting where invoices had been satisfied by payment, the maximum amount of damages that Refinemet could possibly prove is $ 1,300,262.15, an amount the undisputed evidence establishes was paid by Eastbourne. On that evidence alone, the Court finds it more probable than not that Eastbourne reimbursed Refinemet for all amounts for which it is conceivably liable.
Accordingly, for the reasons stated above, the Court finds in favor of the defendant and the complaint is dismissed with prejudice. The Clerk of Court shall enter an appropriate judgment and close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
March 10, 1993
John E. Sprizzo
United States District Judge