CB & F Interamerica, Inc. v. Agro Industrias M & M S.R.L.

675 F. Supp. 179, 1987 U.S. Dist. LEXIS 11928, 1987 WL 28907
CourtDistrict Court, S.D. New York
DecidedDecember 22, 1987
DocketNo. 87 Civ 1445 (RO)
StatusPublished

This text of 675 F. Supp. 179 (CB & F Interamerica, Inc. v. Agro Industrias M & M S.R.L.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CB & F Interamerica, Inc. v. Agro Industrias M & M S.R.L., 675 F. Supp. 179, 1987 U.S. Dist. LEXIS 11928, 1987 WL 28907 (S.D.N.Y. 1987).

Opinion

OPINION

OWEN, District Judge.

In March 1986, CIGC Inc., the predecessor of plaintiff CB & F Interamerica, Inc., a Florida corporation, and ED & F Man Ltd., the parent of plaintiff Farr Man Coffee Inc., a New York corporation, joined in a venture to purchase 300,000 bags of green coffee from defendants. Defendants are two Paraguayan corporations located in the same office in Asuncion, Paraguay, and their three principals, all residents of Paraguay. ED & F Man Ltd also financed loans for $3,000,000 to be used to purchase the coffee for resale to plaintiffs.1 Under the oral agreement this working capital loan was to be reduced by $10.00 for each bag of coffee delivered. By late October [180]*1801986, 60,000 bags had been delivered and the loan had been reduced to $2,400,000 plus interest. At that point, the oral agreement was modified and reduced to writing. The written contract provides that the working capital loan, now financed by Farr Man, is to be reduced $20.00 for each bag of coffee delivered, and that the interest rate on the notes would be the Chase Bank prime plus 1k%. On December 20, 1986, CIGC assigned all rights, title and interest in its coffee operation, including its rights and obligations under this contract, to plaintiff CB & F. Thereafter, the joint venture was that of CB & F and Farr Man.

Pursuant to the written agreement, defendants delivered 60,400 bags of coffee for which plaintiffs paid 80% of the then market price.2 These bags were stored for plaintiffs in a warehouse in Asuncion, Paraguay. Under the terms of the contract, the price for the coffee was to be fixed “by mutual consent” on any date prior to shipment, allowing for a discount of $.30 per pound from the New York Coffee, Sugar and Cocoa Exchange “C” Contract.3 In this instance, defendants elected to wait to fix the price of the coffee. By January 1987 the price of coffee had dropped so far that the original 80% payment made by plaintiffs was more than 100% of the price then fixed for that delivered coffee.4 Therefore by the end of December 1986, plaintiffs had fully paid for the 60,400 bags of coffee stored in the warehouse in Paraguay.

In January 1987, defendants, who served as export agents for plaintiffs under the Granos Favimi Exportadora name, telexed requests for the release of 16 warrants covering a total of 42,600 bags of coffee in order to ship the coffee to points in the United States and Europe.5 Receipts for each of the warrants were signed by defendant Mendonca and the coffee was removed from the warehouse, as evidenced by the cancellation of the warrants by the warehouse. Defendants then advised plaintiffs that the 42,600 bags would be placed aboard vessels for shipment to United States and Europe.6 However only 500 bags reached the destinations designated by plaintiffs. The remaining 42,100 bags were never delivered.

Plaintiffs commenced this action seeking (1) the market value of the 42,100 bags of coffee allegedly converted by defendants, (2) the unpaid principal and interest due on [181]*181the working capital loan, and (3) the overpayment made by plaintiffs for coffee actually shipped. By Memorandum dated April 22, 1987 I granted plaintiffs’ motion for an attachment, finding that they had demonstrated a probability of success on the conversion claim. Plaintiffs now move for summary judgment on that conversion claim and on the claim for the principle and interest due on the working capital loan. The motion is granted as to both claims. Defendants’ wildly shifting affidavits fail to raise a material issue of fact, and as a matter of law plaintiffs are entitled to judgment.

Summary judgment pursuant to Fed.R. Civ.P. 56(c) is appropriate where plaintiffs have come forward with undisputed documentary evidence supporting their claims, and defendants have presented inadequate factual support for their defenses.7 See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). See also Knight v. United States Fire Insurance, 804 F.2d 9, 11-12 (2d Cir.1986). The essential factual basis on which defendants’ opposition rests is contained in the affidavits of defendant Nicholas Knoll, who claims to speak for all the defendants. A chronology of Knoll’s various conflicting sworn statements illustrates why this court cannot and need not give credence to his word as evidence in opposition to this motion. See e.g. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1410 (9th Cir.1987) (“The party opposing summary judgment cannot create a genuine question of fact by contradicting his prior sworn statement.”) (citations omitted). See also Wade v. New York Tel. Co., 500 F.Supp. 1170, 1176 (S.D.N.Y.1980).

First, in an affidavit of March 23, 1987 submitted in the attachment hearing, Knoll stated that some of the coffee was still in the warehouse and the balance had been taken by plaintiffs to some unknown destination. Next, in an affidavit of September 16, Knoll stated that they had not delivered any of the coffee because the president of CB & F came to him and asked him not to tender delivery or ship the coffee. Finally, in a third affidavit of November 9, Knoll rejected his previous stories, admitted that he had lied to the court8, and acknowledged that he and the other defendants took the coffee and disposed of it to recoup some of the money that they claim was owed to them.9

Knoll claims in this last version that plaintiff gave “tacit support” to defendants’ removal of the coffee: “I suggest that I could reasonably infer that tacit support from the fact that it was almost impossible for plaintiffs not to have known exactly what we were doing.” Knoll pleads, “While I admit that we resorted to self help to minimize our financial losses, I beg that you understand our sense that plaintiffs must have known what we were doing....” Knoll’s defense in this last affidavit is that the coffee did not belong to plaintiffs and that therefore the motion for summary judgment should be denied.

In addition, plaintiff’s agents, Besso, Kassin, Walker and Wolter all claim in affidavits that when they first confronted [182]*182Knoll he admitted the theft.10 Those affidavits recite that on the evening of February 6, 1987, when plaintiffs learned that the coffee was not aboard the vessels, Knoll informed Kassin, the President of CB & F, by telephone that there was a “grave problem”. On February 8, at the Fort Lauderdale airport, Knoll confessed that defendants had stolen the coffee to pay off suppliers to whom they were deeply in debt. Knoll allegedly said “we speculated, we lost, we paid with your coffee”, and explained that it was “literally a matter of life and death in Paraguay” that they pay off their debts to suppliers.

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Related

Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Wade v. New York Telephone Co.
500 F. Supp. 1170 (S.D. New York, 1980)
Jurado v. Eleven-Fifty Corp.
813 F.2d 1406 (Ninth Circuit, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
675 F. Supp. 179, 1987 U.S. Dist. LEXIS 11928, 1987 WL 28907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cb-f-interamerica-inc-v-agro-industrias-m-m-srl-nysd-1987.