regarding the pinwheel cookie carton and authorizing production to begin. (Px 8, bates P00274). This document and the prior course of dealing constitute an agreement with respect to the terms and conditions contained on the reverse side of the acknowledgment and approval of the order for all 500,000 pinwheel boxes.
13. Shortly thereafter, Malnove manufactured all 500,000 pinwheel cookie boxes and delivered the first truckload of 144,000 boxes to Maurice Lenell on or about March 28, 1994. (Px 10 and 11). On March 28, 1994, Malnove invoiced Maurice Lenell $ 17,612.64 for the first shipment which Maurice Lenell paid on April 29, 1994. (Px 11). Malnove stored the remaining boxes while awaiting further release from Maurice Lenell.
14. Shortly thereafter, Maurice Lenell's plans for its 20 oz. pinwheel cookies received a setback when certain key customer buyers were replaced. Maurice Lenell did not inform Malnove as to when it intended to take further delivery.
15. From time to time between April, 1994 and April, 1995, Patrick Buckley contacted the Cohens and requested that they take further delivery of the pinwheel boxes. These contacts included numerous telephone calls and personal visits. The only response he received from the Cohens was that Maurice Lenell would take the boxes when they wanted them and they did not want them yet.
16. The understanding under the parties' contract and in the industry is that Maurice Lenell was obligated to take delivery of all 500,000 cookie boxes within a reasonable period of time. 810 ILCS 5/2-309(1); 810 ILCS 5/1-102(3); Nasco v. Dahltron Corporation, 74 Ill. App. 3d 302, 392 N.E.2d 1110, 1115, 30 Ill. Dec. 242 (2nd Dist. 1979) ("While the time for the production of the 900 additional units was not stated, the order was referenced to a schedule to be worked out; and the law would imply that performance of the contract would be within a reasonable time."). The Court finds that a reasonable period of time for Maurice Lenell to take delivery was no later than December 31, 1994, approximately nine months after the initial shipment. This time period reflects the optimistic predictions by Terry Cohen, the fact that Maurice Lenell ordered twice as many of the pinwheel boxes as the Family Favorite boxes and the record of Maurice Lenell deliveries from other suppliers. Maurice Lenell has refused to take any further delivery and at trial estimated that it will not require more 20 oz. pinwheel boxes until early 1997.
17. As of January 1, 1995, Maurice Lenell became liable for $ 44,465.80 for the remaining 363,550 pinwheel cookie boxes, plus a 1 1/2% per month finance charge pursuant to the acknowledgment and storage charges of $ 250.00 per month as incidental damages pursuant to 810 ILCS 5/2-710. GNP Commodities, Inc. v. Walsh Heffernan Co., 95 Ill. App. 3d 966, 420 N.E.2d 659, 672, 51 Ill. Dec. 245 (1st Dist. 1981) ("Under section 2-710 of the Code, incidental damages includes expenses for care and custody of the goods."). Maurice Lenell shall have thirty (30) days from the date of judgment to advise Malnove what it wants done with the remaining pinwheel boxes and Maurice Lenell shall assume responsibility for the storage charges if it elects not to have the remaining boxes delivered to its plant. In the event Maurice Lenell fails to provide delivery instructions or fails to assume responsibility for the storage charges, Malnove shall be free to dispose of the pinwheel boxes without further responsibility.
18. The pinwheel boxes were produced in one production run and this was reasonably foreseeable by Maurice Lenell who wanted to be certain that all of the boxes were available immediately upon its request. Maurice Lenell cannot reasonably expect Malnove to have all the boxes available and then refuse to advise Malnove of a reasonable delivery schedule. Malnove was left with no recourse but to file suit.
19. Maurice Lenell was aware of Malnove's standard terms and conditions contained on the reverse side of Malnove's acknowledgment form and it accepted those terms and conditions in its dealings with Malnove. Maurice Lenell breached its agreement with Malnove by failing to accept delivery of the remaining pinwheel boxes by December 31, 1994.
20. The Court also finds credible the testimony of Patrick Murnane, a Vice President of Murnane Packaging Corporation, who testified that in his experience, a purchaser such as Maurice Lenell becomes liable for all quantities of boxes requested in its purchase orders. Furthermore, even Terry Cohen testified that he always took shipment of all merchandise he ordered, however, the period of time varied depending upon the industry.
21. Maurice Lenell owes Malnove the following sums as a result of its breach of contract in connection with the Pinwheel claim:
Purchase price for remaining
boxes $ 44,465.80
1 1/2% per month finiance
charge for period 1/1/95-10/31/96
($ 666.99 x 22) 44,673.78
Incidental damages for storage
for period 1/1/95-10/31/96
($ 250 x 22) 5,500.00
Court costs and reasonable attorneys'
fees - to be decided following judgment $
22. Judgment is entered in favor of plaintiff Malnove and against defendant Maurice Lenell in the amount of $ 5,382.00 on its Family Favorite claim and $ 64,639.58 on its Pinwheel claim for a total judgment of $ 70,021.58, plus court costs and reasonable attorneys' fees. The parties shall follow new Local Rules 46 and 47 with respect to resolving the issue of reasonable attorneys' fees and related non-taxable expenses, if any. A status report on the issue of attorneys' fees and related non-taxable expenses is set for January 16, 1997 at 10:00 a.m.
Date: October 31, 1996
United States Magistrate Judge
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial before the Court. The issues have been tried and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of plaintiff, Malnove Incorporated of Nebraska and against defendant, Hearthside Baking Co., Inc. in the amount of $ 70,021.58 plus court costs and reasonable attorneys' fees.
October 31, 1996
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