May 14, 2009
PRODUCTS AFRICANA, INC., PLAINTIFF-APPELLANT,
CHARLOTTE AYIKU, DEFENDANT-RESPONDENT, AND ALBERT BRUCE, DEFENDANT.
CHARLOTTE AYIKU, THIRD-PARTY PLAINTIFF/ RESPONDENT,
CHRIS ASHIE A/K/A CHRISTOPHER D. ASHIE A/K/A J. ASHIE, THIRD-PARTY DEFENDANT/ APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1487-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Stern and Payne.
Products Africana, Inc., principally owned by Christopher Ashie, sued Ashie's cousins, Charlotte Ayiku and Albert Bruce,*fn1 in the Special Civil Part for money owed following importation of yams and other food products from Ghana. In Count I of its complaint, Products Africana alleged wrongful seizure and conversion by defendants of fifty-two cartons of yams with a value of $1,976. In Count II, Products Africana alleged seizure and conversion of a twenty-foot container containing agricultural goods and foodstuff. In Count III, Products Africana sought payment of demurrage charges of $1,160. In Count IV, Products Africana sought payment for eighty cases of yams with a value of $994, and in Count V, Products Africana sought repayment of $5,000 for 1,000 cases of yams that were never delivered.
Ayiku answered the complaint, counterclaimed against Products Africana, and filed a third-party complaint against Christopher Ashie in which she alleged that Ashie fraudulently sold goods that she warehoused at a facility owned by Products Africana, without payment to Ayiku. Damages in the amount of $44,542.01 were sought from Products Africana and its principal, Ashie. Following transfer to the Law Division, a bench trial was held on the parties' claims. At its conclusion, the trial judge entered judgment in the amount of $24,000 in favor of Ayiku and against Ashie. The judge found no evidence of any agreement between Ayiku and Products Africana. Both Ashie and Products Africana have appealed.*fn2
At the trial of the matter, Ayiku and Ashie were the only two witnesses. Their testimony was unclear, and their versions of events differed considerably. Ayiku, a resident of Oklahoma City, testified that she had been in the business of importing foodstuff from Ghana through the port of Houston. At a wedding in New Jersey, she learned that her cousin, Ashie, owned a warehouse in Hillsborough, New Jersey, that he used for distribution of products sold through his company, Products Africana. After recognizing that importing goods from Africa through the port of New York and New Jersey would be easier than through Houston, Ayiku reached an informal agreement with Ashie to ship products to his New Jersey warehouse, where they would be stored briefly before being trucked to Oklahoma. In December 2001, Ayiku traveled to Ghana to purchase yams, red palm oil, and gari, returning to the United States in January 2002. According to Ayiku's testimony, instead of warehousing the products, with her consent, Ashie sold all but three cartons of red palm oil to his own customers, and as a consequence, he owed her the sum of $38,559, which included a profit of about $8,000.*fn3
Of that amount, Ashie paid only $19,434,*fn4 and thus Ayiku claimed that Ashie owed her $14,125.*fn5
Despite Ashie's failure to fully pay the amounts allegedly owed on the first shipment, Ayiku returned to Africa in late 2003 and early 2004 for a second shipment, consisting of a forty-foot container and a twenty-foot container of foodstuff. Ayiku testified that she sold the contents of the twenty-foot container herself, and was making no claim with respect to it. However, she stated that Ashie sold the contents of the forty-foot container, consisting of 1,100 cases of yams, which she valued at $38,626, including shipping costs. According to Ayiku, Ashie gave her two checks for $5,000 each, neither of which cleared, and a check for $2,500, which did clear. Additionally, a check issued by Products Africana for the amount of $9,521.22, dated January 12, 2004, and made payable to Magellan Shipping was placed in evidence.
Ayiku professed no knowledge of a proposed third shipment. Ashie testified that he was in the business of producing and selling a fermented cornmeal product known as fanti kenkey and wholesale marketing various other African foodstuff. While attending a relative's wedding in August 2001, Ayiku saw Ashie's business, and she offered to sell him yams, palm oil and gari. Ashie agreed to the proposal, and in accordance with it, was supplied in January 2002 with 500 cartons of fresh yams, 200 cartons of red palm oil, and 300 bags of gari, purchased at a cost figured by Ashie to be $19,105*fn6 - the amount Ashie claimed he owed Ayiku. Ashie accounted for payment by testifying that he wrote three $5,000 post-dated checks, made payable to Ayiku, one of which bounced, and a fourth bank check in the amount of $3,000. He also claimed payment of $2,500 by money order, but offered no evidentiary proof of that fact. Ashie testified that Ayiku obtained the balance from customers of Ashie who owed Ashie money, collecting a total of $3,625. In sum, Ashie claimed payments and credits of $19,125 for the first shipment.
In October 2003, Ashie prepared a document, for discussion purposes, entitled "Yam Procurement & Distribution in the U.S. - Joint Venture." The document provided a cost estimate of $28,162 for the purchase and shipment of 1,000 cases of yams at $10 per case,*fn7 gross sales of $38,000 and a profit of $8,838. Although the document was sent by Ashie to Ayiku, Ashie insisted at trial that it did not constitute a contract between them.
Ashie testified that he did not wish to continue business with Ayiku because he found the business to be too uncertain. However, at the urging of his business partner, in December 2003, he agreed to participate in a second shipment as a trial endeavor. Ashie testified:
Now, at the time that, you know, the second transaction the agreement came, I told her specifically that for me to even consider doing this thing this would be, you know, . . . the terms and the model that I have to do it. That I would have to buy the yams in Ghana for not more than $10,000. And then have it shipped here within a price range of 5, $6,000, the ocean freight. And then when it comes in here, handling it in my warehouse, etcetera, etcetera, I will try to control the cost, because at the end of the day you have a perishable that if you spend a whole lot of money on, you might lose.
Upon delivery, the invoice for the yams indicated a purchase price of $12. However, Ashie testified that he refused to pay more than the $10 to which the parties had agreed. He thus claimed that he owed Ayiku $10,000.
According to Ashie, he was unaware that Ayiku would be shipping a second container along with his yams. Nonetheless, he paid the shipping company, Magellan, a total of $9,521.22 in shipping charges for both containers, for which he was reimbursed only $2,500 by Ayiku out of a total of $3,913.77 attributable to the second container. Ashie testified that payment of the $10,000 purchase price was made through issuance of two $2,500 checks; a credit of $2,400 for the purchase of eighty cartons of yams by Ayiku at a cost of $35 per carton; a credit of $1,414 for the amount owed by Ayiku in shipping fees; a credit of $1,160 for demurrage charges; and an additional credit of $1,820 incurred when Ayiku removed fifty-two cartons of yams from Ashie's warehouse without his authorization.
Ashie testified that, following the second shipment, he ordered a third shipment from Ayiku through her sister and that he paid $5,000 in advance for the purchase of yams, agreeing to pay an additional $5,000 upon shipment from Ghana. However, when Ayiku demanded $13,000 for the purchase of the yams, Ashie cancelled the deal. The initial $5,000 payment was never refunded. Toward the conclusion of his testimony, Ashie claimed that neither party owed the other anything on the first shipment; that Ayiku owed him about $4,000 on the second shipment; and that she owed him $5,000 on the third.
In an oral decision given at the conclusion of the trial, the judge found the testimony of Ayiku to have been "self serving and untrue." In this regard, the judge found it to be incredible that Ayiku would enter into a second transaction with Ashie while substantial amounts remained owing on the first transaction. Second, the judge found it suspicious that Ayiku had never sued Ashie for the balance, and had only filed her cross-claim and third-party complaint in response to Ashie's suit. Third, the judge found that Ayiku had tampered with evidence when offering a copy of a $5,000 check from Ashie bearing a stamp stating "insufficient funds" that had been added to the paper after the copy had been made.
Nonetheless, turning to the issue of the amount due on the first shipment, the judge found that the parties had agreed to payment by Ashie of $38,559, thereby accepting Ayiku's testimony on that issue. In this regard, the judge rejected Ashie's testimony that his payment should be limited to Ayiku's costs, and that Ayiku had invented the position that payment for the first transaction should be $38,559 after receiving Ashie's joint venture proposal in October 2003. The judge observed:
That's not credible. Because . . . if I were to believe that, then I would have to believe that the defendant went to Ghana, purchased these items, paid for shipment, brought them back and sold them at cost which doesn't make any sense, family or not. And that's part of the problem I have in this case.
I . . . got to believe either she sold it to him at cost or she sold it to him at [$]38,000 and change.
Accepting Ashie's payment history as accurate, the judge credited him with payment of two checks in the amount of $5,000 each, and with $3,625 as the result of Ayiku's collections from Ashie's customers, for a total of $13,625 in payments, leaving a balance due of $24,934. From that amount, the judge stated that he subtracted ten percent, representing the shortfall in gari, leaving an amount owed that he stated to be $24,000.
With respect to the second shipment, the judge found that Ashie had agreed only to pay $10,000 for the yams, plus shipping. Because proof of payment to the shipper, Magellan, had been presented, the judge focused only on the purchase price for the yams. In this regard, he credited Ashie with payment of $1,160 in demurrage charges, $1,414 in shipping charges on behalf of Ayiku, $1,820 for the 52 boxes of yams taken by Ayiku, $2,400 for the 80 boxes of yams purchased by Ayiku, and $5,000 for the unreimbursed prepayment on the third shipment. The judge determined that the total of payments by and credits owed to Ashie was $10,633, and thus that the second shipment resulted in a wash. Accordingly, the judge entered judgment in favor of Ayiku in the amount of $24,000.
On appeal, Ashie argues that it was inconsistent for the trial judge to find Ayiku's testimony to be incredible, yet to accept her position that the parties had agreed to payment of $38,559 for the first shipment. Ashie does not contest the judge's findings with respect to the second shipment, conceding in that regard: "The trial court's decision relative to the second shipment of goods and prospective third shipment is reasonably connected to the verbal testimony and written evidence."
In setting forth our standard of review on appeal Ashie relies on our opinion in Metuchen Sav. Bank v. Pierini, 377 N.J. Super. 154, 161 (App. Div. 2005), where we stated:
In reviewing a judgment entered in a non-jury case, our courts have held that the findings on which such judgments are based "should not be disturbed unless ' . . . they are so wholly insupportable as to result in a denial of justice,' and that the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Id. at 484. "[O]ur appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). In this connection, credibility is generally for the fact-finder to determine. Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y., 2 N.J. 482, 492-95 (1956) . . . .
Our review of this matter has been made more difficult by the absence of pretrial discovery and of documentary evidence to support the parties' claims; the unresponsiveness, particularly on the part of Ayiku, to questions asked at trial; the divergence in the parties' versions of the transactions at issue; and the absence of any responsive briefing on appeal from Ayiku. Nonetheless, following a thorough review of the record, we are satisfied that the trial judge did not err in concluding, in connection with the first transaction, that an oral contract existed between Ayiku and Ashie for the purchase of yams, red palm oil and gari by Ayiku in Ghana, and that (despite Ashie's position to the contrary) the parties did not envision that Ayiku would render the extensive services required to locate, purchase and ship the goods without an expectation of a payment that exceeded her costs. Because Ashie did not admit to any expectation of profit by Ayiku, the only evidence with respect to profit was offered by Ayiku, who testified that the contract price for the shipment was $38,559, whereas the cost was less. Having determined as a matter of law that the parties did not anticipate that Ayiku would offer her services at cost, the judge accepted the only evidence offered as to a contract price exceeding costs - that offered by Ayiku. In the circumstances presented, we do not regard the judge's factual finding in this regard to lack foundation.
However, our review of the trial record satisfies us that the judge was mistaken in his calculation of the amount owed by Ashie on the first transaction. In that regard, the judge declared that he "adopt[ed] the plaintiff's facts" with respect to that transaction. However, he then omitted portions of the evidence offered by plaintiff, recognizing only payment by Ashie of two $5,000 checks and the collection of $3,625 by Ayiku from Ashie's customers, for a total of $13,625, not the $19,125 that Ashie testified that he paid.*fn8 Moreover, we note in this regard that Ayiku acknowledged payments of $19,434. We find no basis for an award greater than that sought by Ayiku.
Further, we note that the judge reduced the amount of the judgment to compensate for the reduction in the quantity of gari supplied, and thus its cost, utilizing a figure of ten percent, which the judge deducted from the amount owed. A more precise result would have been reached by determining the mark-up on the initial contract, which was 1.85,*fn9 and applying that mark-up to the reduced cost, resulting in a contract price of $35,427.50.*fn10
When $19,434 (the payments acknowledged by Ayiku) is subtracted from the revised contract price of $35,427.50, the amount owed is $15,993.50. We exercise our original jurisdiction pursuant to Rule 2:10-5 to enter judgment against third-party defendant Christopher Ashie in that amount.
Because Ashie has not challenged the result reached by the judge with respect to the second and third transactions, we will not address them.
The judgment in this matter is modified to require payment by third-party defendant Christopher Ashie of $15,993.50.