A federal court in California has denied a motion to dismiss in a contract dispute between the supplier of molasses allegedly contaminated with lead and the company that used the ingredient to make licorice subject to a nationwide recall. Am. Licorice Co. v. Total Sweeteners, Inc., No. 13-1929 (U.S. Dist. Ct., N.D. Cal., order entered August 13, 2013).
Relying on a sales contract it had prepared, the molasses supplier contended that the plaintiff had failed to comply with its notice provisions and therefore was precluded from seeking relief for its alleged breach. Relying on a purchase order with different terms it had prepared and issued before the first shipment under the contract, the plaintiff candy maker argued that the shipments were subject to its terms.
The court was unwilling to determine as a matter of law whether the purchase order altered the terms and conditions of the contract, finding that “this issue is properly resolved by the jury, and that it is thus not a proper subject of this motion to dismiss.” The court was also unwilling to determine at this stage “whether Defendant assented to the terms of the Purchase Order when it shipped the molasses in response to the Purchase Orders sent by Plaintiff over the spring and summer of 2012.”