As connoisseurs of 1970’s British ridiculousness know very well (indeed, some by memory): THINGS END BADLY WHEN YOU SELL CHEESE THAT YOU DO NOT HAVE.

Unfortunately, Minerva Dairy seems to have missed that lesson.

North Central agreed four times to buy cheese from Minerva Dairy. North Central agreed to buy the cheese (at a set price, quantity, and delivery date). Minerva agreed to sell the cheese (at the same price, quantity, and delivery date). Four times.

Minerva managed to make only one cheese shipment. Three out of the four times, Minerva was apparently cheeseless. North Central refused to pay Minerva for the one shipment, however, because of Minerva’s failures on the other three orders. Minerva’s cheese lapse allegedly caused North Central damages as it hurried and allegedly paid a premium to buy cheese elsewhere to cover for the cheese it had been expecting from Minerva.

Minerva sued North Central in Ohio for North Central’s failure to to pay for the one consummated cheese delivery and Minerva won that round.

North Central, in turn, sued Minerva in Minnesota for Minerva’s failure to deliver the cheese on the other three deliveries.

In defending against North Central’s claim in Minnesota, Minerva argued that there had never been any contracts between North Central and Minerva for the sale of cheese.

Who comes up with arguments like this (and why)? (Some people just like to argue and get paid money to, apparently.)

Chutzpah, as defined by Leo Rosten and as quoted by U.S. Court of Appeals Judge Richard A. Posner (7th Cir.), is “gall, brazen nerve, effrontery, incredible ‘guts,’ presumption plus arrogance such as no other word and no other language can do justice to.” The word seems appropriate in the North Central vs. Minerva Dairy case.

Maybe all civil litigators (and maybe lawyers on the criminal side as well), from time to time, find themselves having to argue that the word, “day,” as used in the statute, means “night,” that the word “waive” in a contract means “preserve,” and that one’s client’s flat out confession of wrongdoing, seen in proper context, is best understood to be an adamant denial of any blame, fault, or responsibility.

We have to play the cards we are dealt, of course. On the other hand,

If you’re gonna play the game, boy

You gotta learn to play it right.

You’ve got to know when to hold ’em,

Know when to fold ’em,

Know when to walk away…

And know when to run…

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