Cermetek, Inc., a Corporation v. Butler Avpak, Inc., a Corporation

Cermetek, Inc. entered into a series of eight C.O.D. (collect on delivery) contracts with Butler Avpak, Inc., a freight forwarder, to ship electronic parts from Cermetek in California to Digital Time Products, Inc. in New York. Butler Avpak, Inc. (hereinafter Avpak) breached the contracts by delivering the goods to Digital in return for company checks instead of demanding cash, certified check or money order. When these checks were dishonored, Avpak stopped payment on its outstanding checks to Cermetek. As a result, Cermetek has not been paid for six shipments, totalling $23,163.

This appeal is brought by Avpak from a summary judgment awarding Cermetek damages measured by the price or sum to be collected. Avpak contends that there are two contractual limitations of liability, that even without such limitations the proper amount of damages depends on genuine factual issues as to the collectibility of the price and value of the goods, and that it should be allowed to assert a prior debt owed by Cermetek to Digital as a setoff. Avpak also appeals from the denial of its motion for change of venue to the Eastern District of New York. Liability is not contested in this Court. We…