Beruflich Dokumente
Kultur Dokumente
No. 92-1978
ATLANTIC TRACK & TURNOUT COMPANY,
Plaintiff, Appellant,
v.
PERINI CORPORATION,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
_____________________
____________________
March 29, 1993
____________________
Company ("Atlantic")
action pursuant
Gen. L. ch.
to the
106,
Appellant Atlantic
brought
this
breach of
Track &
contract
("Code"), Mass.
court
deferred
decision
supplement
the
on
motions
for
(1)
terms
to
cross
Atlantic
to
judgment on
partial
findings pursuant
to
Fed. R.
Civ.
P.
On
October
Transportation
21,
1987,
Authority ("MBTA")
awarded
the
thirteen mile
Massachusetts
Perini
the
Bay
Eastern
section of double
included undercutting
track's stone
the
the
foundation,
track to
and
track.
The
replace the
disposing of
any
____________________
1
the spring
of
1988, a
sub-contractor tested
the
ballast
under
contaminated.
the
track
and
determined
that
it
was
all
early June,
1988, Perini
solicited an
available" materials.
offer from
Between June
an estimate of
of the
On September 13,
contract
by 52%,
Perini
stopped all
work.
By
October
of
the MBTA
increase in payment
the contract.
31,
The
1988,
Perini proposed
contract.
The proposal
for completion of
an
equitable
entailed
an
under
Perini and
remainder of the
-3-
"all
available"
Atlantic
salvage
sued
in
accordance with
Perini, claiming
that
the
the
purchase
amount of
orders.2
materials
its obligation
material that
available
to
contract.3
contract's plain
purchase orders
the contract
became available;
Perini,
On the
under
Perini
faced
other hand,
suggest that
the
no
by supplying
if no
material became
liability
under
estimates offered
Perini had
the
to deliver
the
in the
a quantity
the true
First,
proving its
Second,
convince the
any
agreement,
as the
Atlantic had
to overcome
interpretation by
ambiguity
latter interpretation
in
a preponderance of
the
contract
the burden
two
of
the evidence.
should
normally
be
F.2d 4,
the
contract supporting
Specifically,
its
interpretation
of the
terms.
____________________
2 At this point, Perini had delivered approximately
materials estimated.
15% of the
of materials,
required Perini
estimate.
faith.
and (2)
to provide
2-306
of the
Code expressly
a quantity approximating
its stated
theories in this
appeal, and we
Trade Usage
Trade Usage
The district
proffer failed to prove
court ruled
that Atlantic's
by a preponderance of the
trade usage
evidence that
we review it only
As this
Athas v. United
_____
______
usage will
supplement the
terms of
1-205(3).
provided no evidence
In
the
that Perini
a contract
that usage.
present
case,
knew or should
Indeed,
one Atlantic
witness testified
competitor of Atlantic's.
-
Day
1, at
Atlantic's
witness
with
106.
trade
trade usage of
of
There was
trade as Atlantic.
that Perini
was not
Therefore,
practices.
testified that
a Perini
in the same
Atlantic
have known
Mass.
we cannot
assume
Furthermore,
he discussed
representative, but
"all available."
Id.
__
knowledge of
another
Atlantic
the terms of
the contract
never explained
the alleged
at 70.
Given
the lack of
-5-
that
the
proposed trade
Section 2-306
usage
of
the
term did
not
II.
Section 2-306
Both
parties
agree
that
the
disputed
contract
governed by
2-306 of
the Code.
the expected
quantity.
output, and
Thus,
Atlantic argues
that
only 15%
according to
of that
2-306,
to requirements
discussed the
disproportionate" clause of
contracts, little, if
2-306
anything, has
We
due to
the
similarity between
these two
types of
contracts.
With
on
the
respect to requirements
meaning of
the "unreasonably
Some
good
faith,
the
section
disproportionate" clause.
the
other
risk
in
accordance
with the
Orange Rockland
_______________
Most
buyer
v. Amerada Hess,
____________
expectations
demands more
than
the stated
parties."
819 (1977).
estimate differently
demands less.
See, e.g.,
___ ____
than
Empire Gas
__________
hold
that
while
of goods
estimate,
1322
quantity
Associates, Inc.
________________
stated
of the
cases in
Corp.
_____
reasonable
F.2d 1315,
2-306 precludes
that
is unreasonably
it permits
highly disproportionate."
buyers
"good
demanding
disproportionate to
faith
from
reductions that
__________
are
840 F.2d
Essentially, the
at 1338-40,
argument is
and
we adopt
the following.
its reasoning.
The "unreasonably
disproportionate" clause
is somewhat
redundant in light
of the
____________________
likely provided to
explanation
as certain
forms
of
the
price, a buyer
in a
increased demands
exploitation in
For
that
example, if
be tempted
to
demand more goods than it truly needs in order to resell them for
the better market price.
On
the
concern
other hand,
if a
exploitation, beyond
buyer demands
less than
bad
faith, is
a stated estimate.
not a
The
seller
has the
opportunity to
sell any
excess of
the subject
to buy approximately
a stated
binding themselves
Essentially,
allocation.
buyer's
buyer
to buy
requirements
"The seller
more
contract
assumes the
circumstances."
The
cases such as
the
risk
of
less
they need.
represents
risk of
goods than
a change
. . .
risk
in the
urgent
change
in
[]
Id. at 1340.
__
same
rationale
supports
different
treatment of
seller in an output
tenders more.
If
seller saw
an opportunity
to
-8-
increase his
output
to the
profits by
buying
buyer, this
additional goods
exploitation might
to resell
as
not conclusively
id.
__
the
at
1338.
On
approximately
inefficient
intend
other
hand,
when
he
bargained
an
that the
to
obligation
keep
sell
seller to make
seller did
the
to
See
___
not likely
contract's
quantity
provision open.
Like the risk allocation
seller's business
seller
assumes
circumstances.
output
Indeed,
the
risk
would
be
of
contemplated
governed
by
change
that
the
in
held that
level
judgment.
of
See
___
(Mass.
only
urgent
business
less
change
costly, while
contracts necessarily
production
faith.
III.
III.
Good faith
Good faith
clear error.
for
-9-
to
notify
Atlantic
Atlantic
offered no
of the
June
21
evidence that
test
results.
the additional
However,
contaminated
Indeed,
the
when it suspended
learned of the
respect to
notification.
Second, Atlantic argues that
by
failing to
project
make a
when the
MBTA
reasonable attempt
eliminated the
to complete
the MBTA
undercutting.
Atlantic
contends that
the contract,
Perini requested
contract price.
an unreasonable increase
in the
attempt to
fails.
For
adjustment
one thing,
to
eliminated.
the
contractor
the contract
when a
may
large
seek an
equitable
quantity of
work is
reasonable attempts to
negotiate an adjustment.
did
That
Moreover,
output
contract for
faith.
party
who ceases
performance
independent business
Neofotistos, 171
___________
reasons acts
N.E.2d at 868.
in good
an
Atlantic offered no
under
clearly err in
determination.
CONCLUSION
CONCLUSION
__________
Based
on
the evidence
presented, the
district court
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