This mаtter comes before the Court on the Plaintiffs action at law seeking damages arising from the Defendant’s alleged failure to pay for delivered goods. The Plaintiff also seeks interest and attorney’s fees and costs. The Defendant denies any obligation. Furthermore, the Defendant has filed a counterclaim, alleging that the Plaintiff is obligated to the Defendant for payments made on the behalf of the Plaintiff to a third party under alternative theories' of assignment of debt and unjust enrichment. The matter was tried before the Court on October 9, 2002. For the reasons given below, the Court finds that the Defendant is obligated to the Plaintiff for $43,842.45 plus interest from the date of trial. Additionally, the Court denies the Defendant’s counterclaims.
The facts in this matter are detailed and convoluted. Therefore the Court only sets forth those necessary for its judgment. Both parties are involved in the water treatment and specialty cleaner trade, selling and distributing chemicals throughout the Southeast. Furthermore, both parties were involved in business relationships with Thermax, a manufacturer of water treatment chemicals. Initially, the Plaintiff served as thе master distributor for Thermax products throughout the Southeast. As such, the Plaintiff sold goods to the
It was also brought out at trial that, in the Spring or Summer of 2000, Thermax made the Defendant its master distributor for the region. The Defendant contends that it received the master distributorship by oral agreement in May 2000. However, both trial testimony and correspondence from Thermax indicate that the distributorship was granted on August 1,2000. During this period, the Defendant made a paymеnt to Thermax of approximately $11,355.00. The Plaintiff contends that this represented the purchase price of the master distributorship, while the Defendant argues that it was a payment cоvering debts of the Plaintiff to Thermax for shipments dated between March 2000 and June 2000. The Defendant also contends that the Plaintiff is obligated to it for a consignment shipment in May 2000 of approximately $40,000.00 to the Plaintiff from Thermax on the basis that the ‘Defendant was the master distributor at that time. Thus, the Defendant contends that these two payments offset any monies owed to the Plaintiff. The Plaintiff, on the other hand, maintains that it was obligated under the consignment to Thermax and that the Defendant’s payments to Thermax were made as a volunteer. Furthermore, evidence at trial showed that the Plaintiff had entered into a payment plan with Thermax for the consignment shipment.
Finally, the Plaintiff filed the motion for judgment against the Defendant seeking damages of $70,164.67, representing the debt of $45,263.85 plus interest, attorney’s fees, and costs. On March 21,2002, the Defendant agreed to pay the Plaintiff $31,430.00 of the monies, leaving an outstanding balance sought by' the Plaintiff of $43,842.45. The Defendant seeks to offset its payment of $11,355.00 and asks the Court to deny both the payment of interest and attorney’s fees.
The evidence at trial clearly indicates that the Defendant was obligated tо the Plaintiff for the deliveries between March 2000 and April 2001. The Plaintiff was able to produce invoices for these shipments whereas the Defendant was unable to show that it did not receivе these goods. Therefore, the Plaintiff is entitled to recover the remaining balance of the goods delivered. Regarding the Plaintiffs request for interest and attorney’s fees, the Court finds that thе Plaintiff is also entitled to recover these expenses even though some of the invoices lacked language regarding interest and attorney’s fees. It is well settled in the Commonweаlth that as between merchants, the terms of agreement of the parties may be governed by lawful trade usage and that the existence of the custom or usage is a question of fact for the trier of facts. Arkla Lumber & Manuf. Co. v. West Va. Timber Co.,
Assignment
In its first defense, the Defendant claims that Thermax made an oral assignment to the Defendant of debts due to it by the Plaintiff. This claim, however, fails both under Title 8.1 (Virginia’s codification of the Uniform Commercial Code) and under the common law of contracts.
Section 8.1-206 of the Code of Virginia (1950), as amended, sets forth the requirement that a writing is necessary for the sales of accоunts receivable that are in excess of five thousand dollars. As the total of the accounts receivables at issue here exceeds eleven thousand dollars and no writing showing the
Additionally, the Defendant’s claim of an equitable oral assignment of the debt fails under the common law because the Defendant is unable to show that Thermax manifested the intent to assign the debt. It is well settled in the Commonwealth that, in order for an assignment tо be effective, there must be an “intent to transfer a present ownership of the subject matter of the assignment to the assignee ... by some word, written or oral, or by some act inconsistеnt with the assignor’s remaining as owner.” Edmunds v. CBC Enterprises, Inc.,
Unjust Enrichment
The Defendant’s second defense is that the Plaintiff was unjustly еnriched by the Defendant’s payment to Thermax of some of the Plaintiffs outstanding debt. The Plaintiff responds that these payments by the Defendant were made voluntarily as part of its acquisition оf the master distributorship from Thermax. The law in the Commonwealth is that a party will not be allowed to enrich itself at the expense of another. Rinehart v. Pirkey,
The Court orders that the Defendant pay the Plaintiff $43,842.45 plus interest from the date of trial.