Migerobe, Inc.v. Certina Usa, Inc.

924 F.2d 1330 (5th Cir. 1991)

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Nature of the Case

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Facts

D is a watch manufacturer. P owns and operates jewelry counters in McRae's department stores, which are located throughout the Southeast. D sells its watches through the efforts of traveling salesmen, who are either salaried employees or independent representatives paid on a commission basis. Gerald Murff was D's sales representative for P. P had purchased watches through Murff before. P called Murff and said it would be interested in buying D watches if D would sell a large portion of its inventory at reduced prices. P wanted the watches so that they could be used as 'door-busters' for an After-Thanksgiving sales promotion. Murff later became aware that P was planning to use the watches in this special After-Thanksgiving promotion. In a letter dated September 14, Murff responded to P, saying that he was pursuing a special price. D's vice president of retail sales, William Wolfe, provided Murff with a list of watches from D's inventory that Murff could offer at a price of forty-five dollars each. Murff scheduled an October 29 meeting with P to present the offer. During the course of the day, Murff made several phone calls to D's home office to verify the number of watches in D's inventory, and to secure specific payment terms. After a full day of negotiating P agreed to purchase over 2,000 Certina watches at a price of forty-five dollars each. Murff phoned D's office one final time to report the sale, and Wolfe's administrative assistant recorded it onto a D order form. On November 4, 1987, D's national accounts manager, Don Olivett, called P to say that Certina would not ship the watches that had been ordered on October 29. The order was being rejected because the offered price was lower than that offered to other customers, and D feared that the offer might constitute a violation of the Robinson-Patman Act. P brought suit, and a jury awarded it $157,133. D appealed. It argues in part that P failed to submit writings sufficient to satisfy the statute of frauds.