46 F.3d 1136
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.
T.O. OGASAWARA CO., LTD., Appellee/Cross-appellant,
v.
MINNESOTA HARDWOODS, INC.; Minnesota Valley Forest Products,
Inc., Appellants/Cross-appellees.
No. 94-1421, 94-1423.
United States Court of Appeals,
Eighth Circuit.
Submitted: Oct. 10, 1994.
Filed: Jan. 9, 1995.
Before McMILLIAN, Circuit Judge, McKAY,* Senior Circuit Judge, and BOWMAN, Circuit Judge.
PER CURIAM.
Minnesota Hardwoods, Inc., and Minnesota Valley Forest Products, Inc., (together MHI) appeal from a final order entered in the United States District Court1 for the District of Minnesota granting judgment as a matter of law to T.O. Ogasawara Company, Ltd., (Ogasawara) and awarding Ogasawara damages in the amount of $159,034.23 and prejudgment interest.2
Upon careful review, we agree with the district court's analysis. The parties had a C & F contract, as defined in Minnesota Statute Sec. 336.2-320 (1966), and MHI bore the risk of loss under the C & F contract when the logs in question were "bumped" and later seized. Moreover, MHI cannot rely on its argument that Ogasawara failed to afford MHI an opportunity to cure because MHI failed to assert such a defense in its answer. See Fed. R. Civ. P. 8(c). Accordingly, the order of the district court is affirmed. See 8th Cir. R. 47B.
The Honorable Monroe G. McKay, Senior United States Circuit Judge for the Tenth Circuit, sitting by designation
The Honorable Donald P. Lay, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by special designation as United States District Court Judge
At oral argument, counsel for Ogasawara indicated that it would waive its cross-appeal if the district court's order were to be affirmed on appeal