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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...