The opinion of the court was delivered by: JOEL A. PISANO
JOEL A. PISANO, UNITED STATES MAGISTRATE JUDGE:
By consent of the parties pursuant to 28 U.S.C.A. § 636 and General Rule 40, a civil jury trial was conducted before the undersigned in the above captioned matter. At the conclusion of the presentation of evidence and argument, the jury returned a verdict for plaintiff in the amount of $ 195,245.55. On November 5, 1992, judgment was entered upon this verdict. This Court is now asked to decide defendant's post-trial motion for judgment as a matter of law, pursuant to Fed. R. Civ. P. 50(b), and, in the alternative, for a new trial under Fed. R. Civ. P. 59. Opposition was filed in response to defendant's motion. Oral argument was first heard regarding the motion on December 29, 1992, and then for a second time on January 25, 1993.
This action involves a dispute over the terms of an agreement for the sale and purchase of ethylene.
Plaintiff, Olefins Trading, Inc., is a Connecticut corporation which maintains its principal place of business in the same state. (Plaintiff's Trial Brief at 5). Plaintiff is in the business of marketing and trading bulk chemicals and chemical products. Id. Olefins purchases the chemicals that it sells to petrochemical companies, such as defendant, from Olefin's supplier, Repsol Petroleo. (Tr.1 at 8).
Repsol Petroleo is located in Madrid, Spain. (Plaintiff's Trial Brief at 7). Olefins hired Y.I. Han, a trader of chemicals, for the purpose of facilitating trade agreements with Korean companies such as Han Yang. Id. at 1.
On or about March 12, 1991, plaintiff contacted defendant to negotiate for the sale of 5700 metric tons (mt) of ethylene at $ 950 per mt. Id. Ethylene is a chemical that is shipped by the ton in its gas form, in specialized tankers.
(Tr.I at 5). A facsimile followed memorializing the offer, and on March 13, 1991, plaintiff mailed to defendant a written confirmation. (P-5).
Defendant responded to the offer with a written counterproposal for the purchase of 4500 mt of ethylene. (P-7). Thereafter, numerous phone conversations ensued and proposed written confirmations were exchanged. Negotiations became complicated by market conditions, when in April of 1991, the price of ethylene dropped rapidly.
On April 2, 1991, defendant requested that plaintiff agree to produce a reduced quantity of ethylene, thus modifying the initial agreement. This request was made due to the rapid decline in the market price of ethylene and storage capacity problems on the part of Han Yang. (Defendant's Trial Brief at 3).
By facsimile dated April 2, 1991, plaintiff indicated that a reduction in quantity was not possible. (P-14). However, plaintiff submitted a counterproposal on April 4, 1991, offering 4500 mt of ethylene at $ 888 per mt, if defendant would issue a commercial credit in the amount of $ 194,625, to be compensated to plaintiff on the parties' next transaction. (P-16). The April 4, 1991 facsimile stated:
As per our phone conversations today, we hereby confirm Hanyang [sic] Chemical's proposal and contract to be amended as follows;
Quantity: 4500 mt maximum
Price: USD888 per mt CIF Yeosu
1. Hanyang [sic] to issue commercial credit to Chemical Trading for the amount of USD194,625 and this amount will be compensated to us on next transaction. This amount is for out loss of FOB and deadfreight.
2. Hanyang: [sic] to open L/C on April 5 in workable form.
All other terms and conditions remain save as per original contract. Please give us confirmation of above together with letter for commercial credit by return today and awaiting L/C details.
A second facsimile followed soon after, from Olefins to Han Yang, identical to the first except for handwritten notations changing the 4500 quantity to 4200 mt, and the $ 194,625 commercial credit to $ 238,125. (P-17).
Defendant responded to the counterproposal of April 4, 1991 with a counteroffer of its own, reflecting the quantity of 4200 mt, but it increased the price to $ 900 per mt. (P-18). This offer excluded mention of a commercial credit, and read in part:
We are pleased to confirm as follows;
BB) Quantity: 4200 mt max
CC) Price: USD900/mt CIF Yeosu, Korea
DD) Term: 30 days after B date
EE) Shipment: Etd.- not earlier than Apr. 20, 1991
We appreciate your company's effort to help Han Yang Chemical Corp.
Shortly thereafter defendant facsimilied a revised purchase confirmation, reflecting the same quantity and price, but it included the following special conditions:
This is a revised purchase confirmation for the offer No. CT-1219 which is revised offer by Olefins Trading, Inc. All other terms and conditions are same.
Our L/C will be opened not later than Apr. 8, 1991 and L/C applicant will be TGS Development Inc. P.O. Box 934, Dayton, NJ 08810.
Also on April 4, 1991, plaintiff responded to defendant's revised purchase confirmation, again stating that defendant must open a letter of credit
and issue a commercial credit in the amount of $ ...