Blue Chip Products, Inc. v. Valley Forge Products Co.

Alexandria County Circuit Court

Blue Chip Products, Inc. v. Valley Forge Products Co.

9 Va. Cir. 94, 1987 Va. Cir. LEXIS 57

Alexandria County Circuit Court·Decided April 15, 1987·No. Case No. (Law) 10466·Published

Opinion

By JUDGE DONALD H. KENT

The Court, having heard the evidence in the case and after a review of the exhibits and submissions of counsel, finds in favor of the plaintiff in the sum of $18,000.00 plus interest from December 5, 1985. This award is based upon the plaintiff’s First Claim for Relief (Implied Warranty of Merchantability). The Court finds that the claim is not barred by Section 8.2-607 of the Code since the plaintiff (buyer) notified the defendant (seller) of the breach within a reasonable time after it was discovered.

The Court finds that plaintiff’s attorney’s fees in the former action should not be recovered. Ordinarily, where a breach of contract has forced the plaintiff to defend a suit with a third party, he may recover reasonable counsel fees incurred by him. The cases supporting this position are ones in which the seller had earlier rejected the buyer’s demand that the seller assume the defense of the earlier action against the buyer. Since no demand was made upon Valley Forge to defend the former action, there should be no recovery of counsel fees.

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By JUDGE DONALD H. KENT

The Court, having heard the evidence in the case and after a review of the exhibits and submissions of counsel, finds in favor of the plaintiff in the sum of $18,000.00 plus interest from December 5, 1985. This award is based upon the plaintiff’s First Claim for Relief (Implied Warranty of Merchantability). The Court finds that the claim is not barred by Section 8.2-607 of the Code since the plaintiff (buyer) notified the defendant (seller) of the breach within a reasonable time after it was discovered.

The Court finds that plaintiff’s attorney’s fees in the former action should not be recovered. Ordinarily, where a breach of contract has forced the plaintiff to defend a suit with a third party, he may recover reasonable counsel fees incurred by him. The cases supporting this position are ones in which the seller had earlier rejected the buyer’s demand that the seller assume the defense of the earlier action against the buyer. Since no demand was made upon Valley Forge to defend the former action, there should be no recovery of counsel fees.

Blue Chip Products, Inc. v. Valley Forge Products Co., 9 Va. Cir. 94, 1987 Va. Cir. LEXIS 57 (Va. Super. Ct. 1987).

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