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Cliffstar Corp. v. Riverbend Products, Inc.

United States District Court for the Western District of New York

November 15, 1990

No. CIV-89-344C




There are two disputes at issue in this case. Plaintiff Cliffstar Corporation ("Cliffstar") has moved for summary judgment on its claimed loss from partial delivery of an order of 3.2 million pounds of tomato paste. Defendant Riverbend Products, Inc. ("Riverbend") has cross-moved for summary judgment for payment on its delivery to Cliffstar of ten boxcars of lemon concentrate and also for payment on the tomato paste it actually delivered to Cliffstar.



Riverbend processes and sells tomato paste and frozen citrus products. It has processing plants in Visalia, California and Yuma, Arizona. Item 28, at 1.

On July 14, 1988, Cliffstar ordered 3.2 million pounds of tomato paste from Riverbend. Item 1, Ex. A (Purchase Order No. 100011). In the same order, Cliffstar attempted to purchase an option on an additional 500,000 pounds of paste. Delivery of the paste was  [**2]  to be spread over the following year, until June 30, 1989. Riverbend accepted the order in writing on July 25, 1988. Item 1, Ex. B. Dale Seal, Riverbend's Director of Sales, rejected Cliffstar's requested option, however, writing: "at this time I am unable to give any options for any additional quantities due to the uncertainty of the incoming tonnage. I will keep you advised as the season progresses." Id.

Between October and December 1987, Riverbend had forecast sales for the 1988 tomato crop of approximately 53 million pounds of tomato paste. Item 32, at 4. In January and February of 1988, Riverbend's field department contracted with growers in Arizona and California to supply 170,000 tons of raw tomatoes. Id. at 5. The field department also projected purchasing additional tons of raw tomatoes on the spot market. Id. at 5-6. By combining firm contracts with spot buys, Riverbend planned to acquire sufficient numbers of raw tomatoes to support its sales forecast. Thereafter, Riverbend received oral and written orders for approximately 78 million pounds of tomato paste. Id. at 6. It remains disputed, however, whether Riverbend accepted these orders, and thus  [**3]  entered into contracts to supply this amount. Compare id. at 6 (citing Seal EBT at 24-26, Seal affidavit para. 10) with Item 28, at 2 (citing Seal EBT). See also Item 38, at 5-10 (arguing at length that Seal EBT and affidavit are not in contradiction).

About the time the Cliffstar-Riverbend contract was formed, and into the early fall, a shortage developed in the tomato crop in Arizona and California. Weather conditions in Arizona caused the crop, normally harvested over an eight to nine week stretch in June and July, to "bunch" (i.e., ripen at the same time), and thus last only five to six weeks from June 1 until mid-July. Item 32, at 7. The California crop experienced similar bunching, causing an accelerated harvest concluding in late September. Id. When the harvest is accelerated  [*83]  in this fashion, processors cannot process all of the crop as it becomes ready and growers are forced to plow under some of the crop, thus creating a shortage.

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750 F. Supp. 81 *; 1990 U.S. Dist. LEXIS 18195 **; 13 U.C.C. Rep. Serv. 2d (Callaghan) 392



tomato paste, crop, shortage, pounds, tomato, concentrate, deliveries, argues, orders, seller, lemon, contracts, summary judgment, buyer, contingency, allocate, notified, harvest, tons, raw, seasonably, customers, admits, paste, summary judgment motion, non-delivery, foreseeable, genuine, parties, sales

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, General Overview, Materiality of Facts, Commercial Law (UCC), Standards of Performance & Liability, Performance, Sales (Article 2), Contracts Law, Breach, Excuse & Repudiation, Acceptance of Goods, Excuse From Performance, Performance Excused, General Provisions, Policies & Purposes, Business & Corporate Compliance, Contracts Law, Standards of Performance, Impracticability, Impossibility of Performance, Supporting Materials, Form, Formation & Readjustment, Modifications, Rescissions & Waivers, Contract Conditions & Provisions, Waivers, Buyer's Damages & Remedies, Damages, Deduction From Price, Remedies, Buyer Remedies, Deductions From Price, General Provisions (Article 1), General Provisions