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Mr. Davis owns one of the largest jam, jelly and preserves plants in the country. He’s based in Massachusetts, just outside of Boston. Davis prides himself on producing the finest products in the business. His prices are high, but his product is nationally renowned. Accordingly, he buys only the best fruit for his product. One day he heard about a peach grower in South Carolina who claimed to grow the finest peaches in the land. Davis decided to see for himself. He went to the farms and met Mr. Potter, the owner. After sampling the peaches, Davis had to have them for his product. Anticipating that he would want the peaches, Davis went by the nearby docks on his way to see Potter and learned that the Excelsior, a cargo vessel, would be sailing for Boston on July 10, 2012. Davis and Potter executed a written contract for a large shipment of peaches to be shipped to Boston on the Excelsior on the first sailing after the date of the contract. Prior to meeting with Davis, Potter, hoping he would sell peaches to Davis, contacted a local shipper and was told the Excelsior would be leaving for Boston July 12, 2012.

Davis immediately went back to his plant in Massachusetts and hired a large number of employees to begin work on July 12 (It takes two days to ship peaches from the grower to Boston.) He also contracted for the purchase of a great deal of sugar, jars, etc. because he planned on a tremendous sales campaign based on his peach jam, jelly and preserves. For his part, Potter hired additional laborers to pick and pack the peaches to be sent to Boston. On July 12, Potter’s employees picked and packed the peaches necessary to send to Davis. They were placed on the Excelsior and shipped on the afternoon of July 12. On the afternoon of July 12, Davis had numerous employees at the dock as the Excelsior arrived, and he had numerous other employees at the plant ready to begin immediate processing of the fruit.

Lo and behold, the Excelsior was unloaded and no peaches! He called Potter. During the conversation Potter told him the fruit had been shipped on the Excelsior that afternoon. Davis furiously informed him that the Excelsior was in Boston as they spoke. A call to the dock clarified the situation. There were TWO ships named Excelsior. One ship sailed on the 10th and arrived on the 12th. The other ship sailed on the 12th and would arrive on the 14th. Davis had learned about the first Excelsior, and Potter about the second. Neither was aware of the existence of two ships named Excelsior.

Davis told Potter he had stopped production at his plant, so they could just produce product from the peaches. He told Potter he would suffer tremendous damages because the peaches were not in Boston on the 12th. Potter told Davis he had sold the peaches to Davis and turned down other buyers; the peaches would rot before he could find another buyer. Davis told Potter he couldn’t use fruit on the 14th and told him he would refuse the delivery. Potter sued for his damages. Davis counter-sued for his damages. PLEASE ASSUME THAT IN ALL OTHER RESPECTS, THE CONTRACT WAS PROPER. THERE WAS NO PROBLEM WITH THE EXECUTION OR ANY OTHER TERMS.

1. Who wins? Why?
2. Do you personally agree with the outcome?

PLEASE ADDRESS ALL PARTS. Please make sure to include cites from the book. Thanks!

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