Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.t.o. Ogasawara Co., Ltd., Appellee/cross-appellant, v. Minnesota Hardwoods, Inc.; Minnesota Valley Forest Products,inc., Appellants/cross-appellees, 46 F.3d 1136 (8th Cir. 1995)

Minnesota Hardwoods, Inc., and Minnesota Valley Forest Products, Inc., (together MHI) appeal from a final order entered in the United States District Court¹  for the District of Minnesota granting judgment as a matter of law to T.O. Ogasawara Company, Ltd., (Ogasawara) and awarding Ogasawara damages in the amount of $159,034.23 and prejudgment interest.² 

Upon careful review, we agree with the district court's analysis. The parties had a C & F contract, as defined in Minnesota Statute Sec. 336.2-320 (1966), and MHI bore the risk of loss under the C & F contract when the logs in question were "bumped" and later seized. Moreover, MHI cannot rely on its argument that Ogasawara failed to afford MHI an opportunity to cure because MHI failed to assert such a defense in its answer. See Fed. R. Civ. P. 8(c). Accordingly, the order of the district court is affirmed. See 8th Cir. R. 47B.