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Contracts Keyed to Burton
Fertico Belgium S.A. v. Phosphate Chemicals Export Ass’n
Citation:
70 N.Y.2d 76, 517 N.Y.S.2d 465, 510 N.E.2d 334Facts
Fertico Belgium S.A. (hereinafter “Fertico”) (plaintiff) contracted with Phosphate Chemicals Export Ass’n (hereinafter “Phosphate”) (defendant) to purchase two separate shipments of fertilizer. The first shipment was to be delivered no later than November 20, 1978 and the second was to be delivered by November 30, 1978. Phosphate knew that Fertico needed the fertilizer by the specified delivery dates in order to fulfill a secondary contract with Altawreed, Iraq’s agricultural ministry. Fertico made payment on the first shipment, which Phosphate received. The first shipment of fertilizer was not actually delivered until December 17, 1978. In order to avoid a secondary breach with Altawreed, Fertico purchased the same fertilizer from another company, Unifert. Fertico’s contract with Unifert was $700,000 more than its original contract with Phosphate. Fertico notified Phosphate that the breach of the first shipment presented “huge problems” for them and canceled the second shipment. Despite the breach as to the first shipment, Fertico retained the fertilizer and was left with 15,000 tons of late-delivered fertilizer. Fertico was later able to sell the surplus of fertilizer to another buyer Janssens for a profit of $454,000. Fertico sued Phosphate, seeking damages.
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