2013Na5658 Prices for goods

A Stock Company

Pohang-si

Representative Director Park*

Attorney Jung-won, Counsel for the defendant-appellant

[Defendant-Appellant]

B Stock Companies

Changwon-si

Representative Director**

Daegu District Court Decision 2013Gahap374 decided September 26, 2013

May 28, 2014

June 25, 2014

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be filed.

2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 214,504,39 won with 20% interest per annum from the day following the delivery of the complaint of this case (the original copy of the payment order) to the day of complete payment.

2. The plaintiff's purport of appeal

Of the judgment of the first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff additional KRW 189,003,759 and interest calculated at the rate of 20% per annum from the day following the delivery of the complaint of this case to the day of full payment.

3. The defendant's purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be filed.

1. Determination as to the cause of claim

(a) Facts of recognition;

The following facts are either in dispute between the parties or in accordance with the purport of the whole pleadings and statements in Gap evidence Nos. 1, 2, 4, 18, 19, and Eul evidence Nos. 1, 2, 3, and 5 (including the branch numbers, if not specially indicated; hereinafter the same shall apply), and there is no counter-proof.

1) The Plaintiff is a company that operates the lecture hall manufacturing business in the port of port, and this B1 is a person who has worked as the director of the sales 1 business division belonging to the Plaintiff.

The Defendant entered into a contract with the trading company of this day around February 2012 to manufacture and supply steel pipes, which is engaged in the sales business of steel and steel products in Changwon-si.

2) Around February 2012, the head of the division of the Plaintiff’s title B1 and the representative director of the Defendant’s representative ** entered into a contract for compulsory production and supply (hereinafter “supply contract of this case”) under which the Plaintiff would produce and deliver the lectures to the Defendant according to the Defendant’s order, and the unit price of the supply was KRW 950 per km, and the payment period was set up until the time limit set under the contract between the Defendant and the Japanese trader.

3) On February 27, 2012, March 30 of the same year, and April 10 of the same year, the Defendant ordered the Plaintiff to produce and deliver the lectures on the items and specifications stated in the column of “products” in the following order sheet (see subparagraph 2).

A person shall be appointed.

A person shall be appointed.

4) On April 16, 2012, the head of this B1 division, who belongs to the Plaintiff, sent the document stating the date indicated in the “the payment period date” column of the above order sheet ‘the above order sheet ’ to the effect that he/she accepted the above order of the Defendant on April 16, 2012, as the e-mail of the Defendant representative director. On April 24, 2012, the Plaintiff offered the document stating the payment period by writing a part of the lectures under the supply contract of this case, and then requested the Defendant to pay the price for the goods at KRW 950 won per kg, and then delivered each lecture statement stating ‘the delivery date of the above supply sheet ‘the delivery date' column to the Defendant on each date indicated below.

A person shall be appointed.

A person shall be appointed.

B. Determination

1) Recognized parts

Although the delivery contract of this case was concluded between the plaintiff's representative director and his employee B1 and the defendant's representative director, the plaintiff implemented the terms of the supply contract of this case by producing lectures in accordance with the above supply contract of this case and delivering them to the defendant, and the plaintiff also asserted that the contract of this case was valid and the balance of the price of the goods was not paid. In light of the fact that the plaintiff filed the lawsuit of this case, the plaintiff is presumed to have granted the authority to conclude the contract of this case to this B1 and the contract of this case was concluded by this B1 as above. (A) Although the delivery contract of this case concluded by this B1 was rejected on March 6, 2012 as the unit price issue of delivery, it is not valid for the plaintiff, as long as the contract of this case is deemed to have the power to conclude the contract with this B1, it is difficult to recognize the validity of the supply contract of this case based on internal approval, and thus, the plaintiff's assertion is not accepted. Further, the plaintiff's assertion of this case's testimony of this case 17 evidence is not accepted.

Then, it is acknowledged that the Plaintiff provided that the Plaintiff did not grant the right to conclude the instant supply contract to thisB1, as seen earlier, that the Plaintiff supplied the Defendant with part of the lecture library ordered by the instant sales contract on April 24, 2012 and requested the Defendant to pay the price according to the supply unit price (kg per 950 won) under the said contract. Thus, it is reasonable to view that the Plaintiff ratified the entire supply contract of this case concluded by this B1, including the supply unit price and the supply schedule.

Therefore, the delivery contract of this case is effective between the plaintiff and the defendant, barring special circumstances, the defendant is obligated to pay to the plaintiff the total amount of the goods price of KRW 527,415,300 (the "total amount of the goods price" means KRW 370,902,551 (the "total amount of the goods price of KRW 87,95,471 + 282,907,080 + KRW 370,902,551) less the remainder of KRW 156,512,749 (527,415,30-370,902,50-370,902,51) and damages for delay.

(ii) not recognized parts;

The Plaintiff asserts to the effect that the portion of the instant supply contract is changed to KRW 1,004 or KRW 1,027 perkgggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg

According to the reasoning of the judgment below, Gap evidence No. 6 through 9, and Gap evidence No. 18, part of Gap evidence No. 19, and witness leB2 (except for each part believed above), the plaintiff's regular leapb2 visited the defendant around May 30, 2012, and immediately thereafter, the defendant representative director fixed ** * the plaintiff's visit to the plaintiff and discussed about the unit price for payment. After that, on May 10, 2012 and June 14, 2012, the plaintiff's delivery of the unit price for delivery increased by KRW 1,04 through 1,027 to the recipient without any specific objection, the plaintiff's delivery of the unit price for delivery to the plaintiff is not sufficient to recognize the delivery of the goods to the extent that the defendant had already delivered the delivery of the goods to Korea without any specific objection, or the defendant's delivery of the goods to the plaintiff by not later than October 30, 2012.

Therefore, the plaintiff's claim for this part is without merit.

2. Judgment as to the defendant's allegation of offset

A. The defendant's assertion

① Since there was a defect in water control for the products supplied by the Plaintiff, the Defendant received a claim from a trader in Japan in an amount equivalent to 500,000 United Nations for damages caused by the defect, which caused damage to the Defendant in an amount equivalent to the same amount.

② Due to the delay of the Plaintiff’s supply, the Defendant did not have to delay the supply to the Japanese trading company. The Defendant received from the Japanese trading company a claim amounting to KRW 11,057,076 due to the delay of the supply. Ultimately, the Defendant suffered damages from the Japanese trading company’s right to set off the amount equivalent to the said damages.

Therefore, the defendant asserts that the plaintiff shall be converted into the Korean won value as of October 19, 2012 (exchange rate 1,390.04 won/100N) as of October 19, 2012, since the defendant shall set off against the plaintiff the remainder of the price of the plaintiff's goods with automatic claim against the plaintiff.

B. Whether the defendant suffered damages

(i) loss due to poor water control;

On July 2012, the fact that any defect in water control occurred in the steel products supplied by the Plaintiff, and the end of July 2012 (see Evidence No. 5-4, No. 5-5) at the latest, there is no dispute between the parties that damage No. 500,000 UN was not occurred to the Defendant, and thus, the Plaintiff is liable to compensate the Defendant for the damages equivalent to 50,000 UN.

(ii) damage due to delay in delivery;

The defendant delivered the product to the defendant's representative director after the lapse of the time limit for payment on April 16, 2012, "the date of payment notified" as well as "the date of payment notified by the defendant" as well as "the date of payment notified by the defendant," and the fact that the delivery of the product has not been completed for a significant portion of the main sentence quantity to the plaintiff under the supply contract of this case, and that the defendant requested the plaintiff to manufacture and supply the items and specifications stated in "the date of payment requested" as stated in the "the date of payment" as stated in the above order list to the plaintiff by each date stated in the "the date of payment requested" as stated in the above order list. However, according to the purport of this case, the defendant sent the product to the defendant's representative director after the lapse of the "the date of payment notified by the defendant" as well as the "the date of payment notified by the defendant," and the fact that the delivery has not been completed until now on the main sentence quantity as stated in the above order No. 6 and No. 7 evidence No. 970.

According to the above facts, at the time of the conclusion of the supply contract of this case, the plaintiff was already aware that the defendant would receive lectures from the plaintiff and export them to Japan's trading company, and could have sufficiently predicted that the defendant would be liable for such damages if the payment period stipulated in the supply contract of this case is not observed. However, as seen earlier, the defendant delayed the supply and prevented the defendant from complying with the payment period on a chain basis. As such, the defendant's compensation liability is the ordinary damages which have proximate causal relation with the delay of the supply of this case, and thus, the plaintiff is liable to compensate the plaintiff as a trade damage in relation to the delay of the supply of this case.

(c) Effect of an offset;

Since the fact that the duplicate of the instant reply stating the Defendant’s declaration of offset reaches the Plaintiff on March 11, 2013 is apparent in the record, the effect of offset is examined.

The Defendant’s total damage claim against the Plaintiff appears to have reached the due date of payment immediately after September 30, 2012, when Japan’s trading company finally set-off against the Defendant (as seen earlier, the Defendant asserted a set-off as of October 19, 2012, which is after the above date, but even after the above Defendant’s assertion, there is no difference at the time of the following set-off). The remainder of the Plaintiff’s claim against the Defendant for the amount of KRW 156,512,749 at the latest 15,00 and KRW 57,00 on October 30, 2012, the amount of KRW 57,000 reached the due date of payment on October 30, 2012. Accordingly, the Defendant’s claim against the Defendant for the above goods payment against the Defendant was no longer than KRW 35,050,0000, KRW 157,057,000, KRW 5715,015,07,075,07.

Therefore, the defendant's defense of set-off is justified.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the part against the defendant among the judgment of the court of first instance against the defendant is unfair with its conclusion different, it shall be accepted by the defendant's appeal, and the plaintiff's claim corresponding to the revoked part shall be dismissed, and the remaining part of the judgment of the court of first instance is justified with this conclusion, and it is so decided as per Disposition.

Gangwon-do (Presiding Judge)

Freeboard Kim

The grandchildren Hospital; and

1) The Plaintiff’s response to the request for explanation by the court of first instance, and the date of fourth pleading by the court of first instance, in total amount of goods priceing KRW 585,406,890 (A)

Of No. 14, KRW 87,95,471 and KRW 282,907,080 were repaid respectively, and KRW 214,504,339, as stated in the purport of the claim, were reimbursed.

It is revealed that there remain still remains without any change.