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DURABLE, INC. v. TWIN CTY. GROCERS CORP.

December 15, 1993

DURABLE, INC. d/b/a/ and a/k/a DURABLE ALUMINUM, Plaintiff,
v.
TWIN COUNTY GROCERS CORP. d/b/a ALPINE DISTRIBUTORS, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case presents the question of the effect during contract negotiations between two sophisticated business entities of transmission by a party of a list of thirteen proposed points including the need for a "firm offer in writing," and not containing a quantity term. I find that the requirement of a "firm offer in writing" prevents the writing of "Accepted" on such a paper from creating a contract.

 I further conclude that such a requirement prevents incomplete earlier or subsequent papers from being used to piece together a binding agreement, and that none of the documents submitted in this case satisfy the statute of frauds contained in Uniform Commercial Code 2-201.

 II

 Plaintiff ("Durable"), a supplier of aluminum kitchenware, alleges that the parties entered into a contract obligating defendant ("Alpine"), a buying group purchasing such items for numerous retailers, to buy all of its requirements for aluminum goods from Durable for a three (3) year period, and that Alpine breached that contract. Alpine acknowledges having negotiated with Durable concerning the possibility of an arrangement of this type, but denies that an agreement was ever reached. No single document reflecting a final agreement or signed by both parties is extant.

 Jurisdiction is predicated upon diversity of citizenship under 28 USC 1332; New York law is applicable pursuant to Erie RR Co v Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938).

 After completion of discovery, Alpine has renewed its motion for summary judgment on grounds of lack of evidence of entry into a contract, and of absence of a writing satisfying Uniform Commercial Code 2-201(1). I grant Alpine's motion on both grounds.

 III

 The principal events concerning the dealings between the parties appear undisputed, although their characterization is hotly contested. For purposes of Alpine's motion, I accept plaintiff Durable's factual description of those events. The facts claimed, however, make it "implausible" that a contract was agreed to, and as indicated in Matsushita Electric Industrial Co v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), this requires the claimant to "come forward with more persuasive evidence to support [the] claim than would otherwise be necessary." Id. Far from doing so, the testimony of plaintiff's executives tends to negate the existence of the claimed agreement.

 IV

 During 1989, the parties began discussing a possible long-term supply contract. Durable sent various proposals to Alpine in October 1989 and February 1990, but it is not alleged that these were accepted. On March 2, 1990, Alpine sent by telefax on its stationery to Durable, an outline consisting of thirteen (13) points of possible contract terms (attached to this memorandum order as Exhibit A). The last item of this telefax read:

 
"13) Firm offer in writing."

 The telefax:

 
(a) was not ...

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