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United States Court of Appeals for the Fifth Circuit
January 27, 1999, Decided
[*959] REYNALDO G. GARZA, Circuit Judge:
I. Factual and Procedural Background
In August, 1995, Carl Merritt ("Merritt") telephoned RxP and talked to its President, Don Woodward ("Woodward"), about selling a fuel additive known as "RxP Gas Kicker" as a private label product. Woodward referred Merritt to RxP's National Sales Manager, James Potts ("Potts"). On August 19, 1995, Potts met with Merritt. During the next few weeks, the parties had numerous discussions [**2] relating to the potential private label arrangement. On September 18, 1995, Merritt-Campbell, Inc. ("M-C") was incorporated by Merritt and Mr. Harvey Campbell ("Campbell").
On September 28, 1995, Merritt gave Potts a proposed agreement which Potts faxed to Woodward the following day. Woodward made changes to the proposal, signed it, and returned it to Potts to be signed by M-C. On October 3, 1995, Merritt signed the agreement on behalf of M-C.
The agreement in its entirety states:
This agreement is made on this 28th day of September, 1995, between RxP Products, Inc., hereafter referred to as RxP, and Merritt-Campbell, Incorporated, hereinafter referred to as Merritt-Campbell. In consideration of the sum of ten dollars ($ 10.00), the receipt of which is acknowledged, RxP agrees to sell to Merritt-Campbell the product marketed as "RxP Gas Kicker" under the following terms:
1. RxP guarantees the following price to Merritt-Campbell for a period of five (5) years from the date of first order.
a. RxP Gas Kicker bottled in 2.5 ounce quantities-$ 1.25 per bottle (excluding labels).
b. RxP Gas Kicker in 55 gallon drum quantity-$ 1,280,00 (sic) per drum.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
164 F.3d 957 *; 1999 U.S. App. LEXIS 1474 **; 37 U.C.C. Rep. Serv. 2d (Callaghan) 565
MERRITT-CAMPBELL, INC., Plaintiff-Counter Defendant-Appellee-Cross-Appellant, v. RxP PRODUCTS, INC., Defendant-Counter Plaintiff-Appellant-Cross Appellee.
Subsequent History: [**1] Rehearing Denied February 26, 1999, Reported at: 1999 U.S. App. LEXIS 5236.
Prior History: Appeals from the United States District Court for the Northern District of Texas. 3:96-CV-1396-AH. William F Sanderson, Jr, US Magistrate Judge.
Disposition: REVERSED and RENDERED.
option contract, quantity, statute of frauds, magistrate judge, parties, sale of goods, bottles, buyer, terms, summary judgment, sales contract, contracts, seller, enforceable contract, lost profits, unenforceable, damages, argues
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