Save-Way Market of Weber City, Virginia, Inc. v. Sperry & Hutchinson Co.

E.D. Tennessee

Save-Way Market of Weber City, Virginia, Inc. v. Sperry & Hutchinson Co.

86 F.R.D. 395, 1980 U.S. Dist. LEXIS 11757

CourtDistrict Court, E.D. Tennessee

DecidedMarch 25, 1980

DocketNo. CIV-2-79-141

StatusPublished

This text of 86 F.R.D. 395 (Save-Way Market of Weber City, Virginia, Inc. v. Sperry & Hutchinson Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Save-Way Market of Weber City, Virginia, Inc. v. Sperry & Hutchinson Co., 86 F.R.D. 395, 1980 U.S. Dist. LEXIS 11757 (E.D. Tenn. 1980).

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Opinion

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

A magistrate of this district recommended on March 7,1980 that the motion of the defendant for a summary judgment herein be granted. 28 U.S.C. § 636(b)(1)(B). Having considered de novo those portions of the recommendation to which timely written objection was served and filed, the undersigned judge hereby ACCEPTS such recommendation. 28 U.S.C. § 636(b)(1).

The plaintiff failed to demonstrate the existence of any genuine issue(s) of material fact between the parties as to its contention that the written contract between them was modified by subsequent oral representations of the defendant. As a matter of law, the parol and written evidence relied upon by the plaintiff is insufficient to amount to a subsequent modification of these parties’ written agreement. To modify a written contract, “ * * * an oral agreement must have the essential elements of a binding contract * * 17 Am.Jur. (2d) 937, Contracts § 467; accord: Akers v. J. B. Sedberry, Inc. (1955), 39 Tenn.App. 633, 286 S.W.2d 617, 620-621[l], [2], certiorari denied (1956); Balderacchi v. Ruth (1952), 36 Tenn.App. 421, 256 S.W.2d 390, 391[2], certiorari denied (1953); Wright v. Fisher (1940), 24 Tenn.App. 650, 148 S.W.2d 49, 53[3, 4], certiorari denied (1940).

The motion of February 19, 1980 herein hereby is GRANTED; summary judgment will enter for the defendant. Rules 56(c), 58(1), Federal Rules of Civil Procedure.

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MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

A magistrate of this district recommended on March 7,1980 that the motion of the defendant for a summary judgment herein be granted. 28 U.S.C. § 636(b)(1)(B). Having considered de novo those portions of the recommendation to which timely written objection was served and filed, the undersigned judge hereby ACCEPTS such recommendation. 28 U.S.C. § 636(b)(1).

The plaintiff failed to demonstrate the existence of any genuine issue(s) of material fact between the parties as to its contention that the written contract between them was modified by subsequent oral representations of the defendant. As a matter of law, the parol and written evidence relied upon by the plaintiff is insufficient to amount to a subsequent modification of these parties’ written agreement. To modify a written contract, “ * * * an oral agreement must have the essential elements of a binding contract * * 17 Am.Jur. (2d) 937, Contracts § 467; accord: Akers v. J. B. Sedberry, Inc. (1955), 39 Tenn.App. 633, 286 S.W.2d 617, 620-621[l], [2], certiorari denied (1956); Balderacchi v. Ruth (1952), 36 Tenn.App. 421, 256 S.W.2d 390, 391[2], certiorari denied (1953); Wright v. Fisher (1940), 24 Tenn.App. 650, 148 S.W.2d 49, 53[3, 4], certiorari denied (1940).

The motion of February 19, 1980 herein hereby is GRANTED; summary judgment will enter for the defendant. Rules 56(c), 58(1), Federal Rules of Civil Procedure.

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Bluebook (online)

86 F.R.D. 395, 1980 U.S. Dist. LEXIS 11757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/save-way-market-of-weber-city-virginia-inc-v-sperry-hutchinson-co-tned-1980.

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