Wullschleger & Co. v. Jenny Fashions, Inc.

618 F.Supp. 373 (1985)

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Nature of the Case

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Facts

D ordered a sample of six yards of lightweight polyester/rayon woven fabric, style 6697, from P. P expressly represented that the fabric was 'first quality' under industry standards. P knew that D intended to use the fabric to manufacture women's dresses but did not know the particular pattern or style D intended to make. D used the samples to make the skirts. There was no apparent problem with the skirts, so D decided to buy a large quantity of the fabric and make four styles of such dresses which it offered for sale to its customers. D bought 37,500 yards of the fabric from P during the period from October 13, 1983, to January 4, 1984. Only 23,577 yards were delivered, at a price of $27,107.81, for which Jenny paid $11,402.94, leaving an unpaid balance of $14,704.87. Upon receipt, D visually inspected the fabric for quantity and quality by placing samples on a measure graph, and no visible physical defects appeared. The invoices delivered with the fabric disclaimed: 'No claims allowed after 10 days,' and 'no allowance will be made after the goods have been cut.' D discovered that the hems of the circle skirts were distorted in that the bottom hem elongated as much as six inches from its original position when the skirts were pressed on a Hoffman press. D attempted to purchase substitute fabric from three different mills, but none of the available fabric was suitable. Some of D's customers, who were dissatisfied with the distortion, had canceled their orders, and, for the same reason, D canceled the majority of its remaining orders after notifying P of the distortion problem and the resulting cancellations. D inspected the fabric and found that a large portion was 'skewed,' i.e., its warp (vertical) and filling (horizontal) yarns were not at right angles to each other. P admits that some of the fabric was skewed and therefore not of 'first quality.' P sued for nonpayment of invoices and D sued for lost profits and breach of both express and implied warranties of merchantability.