Windows, Inc. v. Jordan Systems Corp

177 F.3d 114 (2nd Cir. 1999)

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Nature of the Case

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Facts

Jordan (D) ordered windows from Windows (P). They were shipped by Consolidated Freightways Corp. but were severely damaged such that much of the glass was broken and many of the frames were twisted and gouged. D was a subcontractor who needed the windows to install them at the JFK Airport in New York. The contract of purchase specified that the windows were to be shipped cross-country motor freight transit and delivered to NYC. D sought a stay on its contractor’s schedule and salvaged what he could. D did not pay for the first shipment or for the second intact shipment of windows. P sued. D counterclaimed seeking incidental and consequential damages. P sued Consolidated (D1) in a third party claim, and D1 removed it to federal court. P and D1 settled. P then withdrew its claims against D. The only remaining claim was against P for incidental and consequential damages. The district court granted P’s motion for summary judgment. Under 2-613, when a contract requires its performance against goods identified and those goods suffer casualty without fault of either party before the risk of loss passes to the buyer, if the loss is total the contract is avoided, and if the loss is partial, the buyer may treat the contract as avoided or accept the goods with allowance. The court found that P was without fault in that there was no showing of negligence by P and the goods were damaged by D1 because they were improperly loaded even though P’s employees assisted in the loading. The court also rejected D’s argument that D1’s negligence should be attributed to P because D1 was P’s subcontractor. The court found that no subcontractor principles had been shown as the contract did not require P to personally deliver the products. Thus, under 2-613, without negligence, D’s suit for damages was barred. D appealed.