Convoy Corporation, an Oregon Corporation v. Sperry Rand Corporation, a Delaware Corporation

After a disappointing performance by a new computer system for the routing, planning, and management of its nationwide automobile transport business, Convoy Corp. sued Sperry Rand for damages. Convoy recovered in a court trial. Sperry Rand appeals, contending that a substantial part (if not the entire amount) of the trial court’s judgment is a double recovery. Sperry Rand contends that Convoy recovered the same damages from another supplier of computer services in an out-of-court settlement of another case.

In August, 1969, Convoy entered into a contract with a computer-technology firm known as WOFAC. For $100,000, WOFAC agreed to design for Convoy a computer system for route planning, dispatching and other operations. WOFAC said it had designed for another firm a similar system that could be adapted to Convoy’s needs, with a net saving of $215,000 a year for Convoy.

After soliciting bids from various computer manufacturers, Convoy decided in November 1969 to lease the necessary computer equipment from Sperry Rand (Uni-vac). At WOFAC’s recommendation, Convoy ordered a 9200 II Univac computer, *387 with two model 8411 discs. Univac told Convoy, however, that the 8411’s might not…

dissenting.

I respectfully dissent from the order remanding this case for further trial. The excellent analysis by the majority misses one salient factor. Double recovery as a defense is an affirmative defense. The burden of proof is on the defendant. Fed.R.Civ.P. Rule 8(c). The defense is akin to the defenses of “payment” and “release” specified in the rule, and, if improperly so characterized, is certainly “other matter constituting an avoidance or affirmative defense.” Cf. Duarte v. Bank of Hawaii, 287 F.2d 51 (9th Cir. 1961).

Univac failed to establish this defense by a preponderance of the evidence. The opinion, which incorporated the findings, of the trial judge, carefully reviewed the evidence relating to the Convoy-WOFAC settlement. The judge found that Convoy did not intend to release its rights against Univac, and also found that Convoy had not, by the settlement, received full compensation for its out-of-pocket expenses. The trial judge then proceeded to detail specific instances of damage suffered by Convoy as a consequence of the actionable conduct of Univac, independently of any wrongdoing by WO-FAC. These damages aggregated $216,-398.61 and judgment was entered…

601 F.2d 385 CONVOY CORPORATION, an Oregon Corporation, Appellee, v. SPERRY RAND CORPORATION, a Delaware Corporation, Appellant. No. 77-2920. United States Court of Appeals, Ninth Circuit. April 25, 1979. Wayne Hillard, Dezendorf, Spears, Lubersky & Campbell, Portland, Or., Thomas A. H. Hartwell, San Francisco, Cal. (argued), for appellant. Terry W. Baker, Tonken, Galen & Baker, Portland, Or., Barbee B. Lyon, Portland, Or. (argued), for appellee. Appeal from the United States District Court for the District of Oregon. Before WRIGHT and GOODWIN, Circuit Judges, and THOMPSON * , District Judge. GOODWIN, Circuit Judge: 1 After a disappointing performance by a new computer system for the routing, planning, and management of its nationwide automobile transport business, Convoy Corp. sued Sperry Rand for damages. Convoy recovered in a court trial. Sperry Rand appeals, contending that a substantial part (if not the entire amount) of the trial court's judgment is a double recovery. Sperry Rand contends that Convoy recovered the same damages from another supplier of computer services in an out-of-court settlement of another case. 2 In August, 1969, Convoy entered into a contract…