PCS SALES (USA), INC., Plaintiff-Counter-Defendant-Appellee, v. NITROCHEM DISTRIBUTION LTD., Defendant-Counterclaimant-Appellant., 128 Fed. Appx. 817

Summary

On appeal, defendant contended that the district court erred in holding that an evergreen clause, which appeared in the parties' unsigned contract drafts, was not binding on plaintiff. The district court concluded as a matter of fact that the parties' conduct throughout 2001 was pursuant to an independent informal oral agreement that was entered into by the parties in late 2000. The district court further found that the parties never reached final agreement on--and as such, never considered themselves bound by--the terms of the written 2001 contract that they were in the process of negotiating. The instant court found that, although there was evidence in the record that ran counter to these findings, the findings were supported by other persuasive evidence, and were not clearly erroneous. Defendant's argument was meritless. The draft contracts exchanged by the parties throughout 2001 related to a different "deal," which the parties never finalized. It followed that the parties never ...