Ace Concrete Products Co. v. Charles J. Rogers Const. Co.

• Decision Date: 24 June 1976
• Docket Number: Docket No. 24421
• Citation: 245 N.W.2d 353,69 Mich.App. 610,20 UCC Rep.Serv. 274
• Parties: ACE CONCRETE PRODUCTS COMPANY, a Michigan Corporation, Plaintiff-Appellee, v. CHARLES J. ROGERS CONSTRUCTION CO., a Michigan Corporation, Defendant- Appellant. 69 Mich.App. 610, 245 N.W.2d 353, 20 UCC Rep.Serv. 274
• Court: Court of Appeal of Michigan — District of US

Page 353

245 N.W.2d 353

ACE CONCRETE PRODUCTS COMPANY, a Michigan Corporation, Plaintiff-Appellee, v. CHARLES J. ROGERS CONSTRUCTION CO., a Michigan Corporation,

Defendant- Appellant.

Docket No. 24421.

69 Mich.App. 610, 245 N.W.2d 353, 20 UCC Rep.Serv. 274

Court of Appeals of Michigan.

June 24, 1976.

Released for Publication Sept. 14, 1976.

[69 MICHAPP 610] John R. Cobau, Grosse Pointe Woods, for defendant-appellant.

Sheldon A. Fealk, Southfield, for plaintiff-appellee.

[69 MICHAPP 611] Before BASHARA, P.J., and R. B. BURNS and QUINN, JJ.

BASHARA, Presiding Judge.

This is an action for breach of contract. The trial judge sitting without a jury granted a judgment of $38,000 to the plaintiff. Defendant appeals.

In early 1972 the Metropolitan Detroit Water Board awarded the defendant a contract to construct a sewer tunnel identified as P.C.I.--13. In August of 1972 the plaintiff entered into negotiations to supply concrete for the project.

Following negotiations the plaintiff sent a letter dated August 23, 1972, to representatives of the defendant. The letter provided in material part:

'RE: City of Detroit

Water Board

P.C.I.--13 Job 1450 ¹

'Gentlemen:

'May we give you the following price quote on concrete for the above job.'

It then proceeded to discuss price quotations and variations.

The plaintiff supplied concrete from August through December, 1972. The defendant paid the plaintiff pursuant to the terms of the letter of August 23, 1972.

On March of 1973 the defendant issued a purchaser order to the plaintiff dated August 21, 1972. It provided:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT

DISPLAYABLE

[69 MICHAPP 612] The space for the quantity term was left blank.

In 1973 the defendant encountered a number of hindrances that delayed pouring of concrete until November. At that time the defendant switched concrete suppliers. Defendant's action precipitated this lawsuit.

The trial judge found that the negotiations of August, 1972, culminated in an oral agreement, whereby the plaintiff would furnish all the concrete required by the defendant to construct the outer lining of the tunnel. We accept this finding as supported by the evidence. ² The trial judge further ruled:

'The Court finds that the oral agreement, along with The letter of August 23rd, to be in accordance with Section 2, paragraph 2 Section 2201 of the Uniform Commercial Code. It was a dealing between two merchants that was subsequently confirmed in writing. I don't feel that Section 2 requires quantity be stated as required in Section 1, but I feel if quantity is a necessary determination, necessary element, in the exception to Section 2 of Section 2201, the quantity could easily have been determined for 11,000 lineal feet for a tunnel 11 feet in diameter, and the plans and specifications were on file to make that determination.' (Emphasis supplied.)

The issue for our consideration is whether the letter of August 23, 1972, or the purchase order of March, 1973, complies with the requirements for a written confirmation under M.C.L.A. § 440.2201(2); M.S.A. § 19.2201(2).

Sale of goods is governed by the provisions of the Uniform Commercial Code. Barron v. Edwards, 45 [69 MICHAPP 613] Mich.App. 210, 206 N.W.2d 508 (1973). In relevant part the statute of frauds provisions of the code provide:

'(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500.00 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

'(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.' M.C.L.A. § 440.2201; M.S.A. § 19.2201.

A written confirmation pursuant to 2201(2) must satisfy the requirements of a writing under 2201(1). White & Summers, Uniform Commercial Code, § 2--4, p. 54. The Official Uniform Commercial Code Comment sets forth those requirements:

First, it must evidence a contract for the sale of goods; second, it must be 'signed', a word which includes any authentication which identifies the party to be charged; and Third, it must specify a quantity.' (Emphasis supplied.) Official Uniform Commercial Code following M.C.L.A. § 440.2201 at p. 125; M.S.A. § 19.2201 at p. 352.

Therefore, a confirmation must specify a quantity term. The trial judge erred in holding that no quantity term was required by 2201(2).

[69 MICHAPP 614] Our conclusion that a written confirmation must contain a quantity term is buttressed by the fact that this is the overwhelming view adopted by the commentators. White & Summers, Supra; ³ 1 Anderson, Uniform Commercial Code (2d ed.), § 2--201:51, pp. 283--284; 3 Bender's U.C.C. Service, Duesenberg & King, Sales and Bulk Transfers, § 2.04(2), pp. 2--67 through 2--68, ⁴ and case law. Azevedo v. Minister, 86 Nev. 576, 582, 471 P.2d 661, 665 (1970), John H. Wickersham Engineering & Construction, Inc. v. Arbutus Steel Co., 58 Lanc.L.Rev. 164; 1 U.C.C. 49 (Pa.Common Pleas 1962), Doral Hosiery Corp. v. Sav-A-Stop, Inc., 377 F.Supp. 387, 389 (E.D.Pa., 1974), Fortune Furniture Manufacturing Co., Inc. v. Mid-South Plastic Fabric Co., Inc., 310 So.2d 725, 728 (Miss., 1975), Fort Hill Lumber Co. v. Georgia-Pacific Corp., 261 Or. 431, 435--436, 493 P.2d 1366, 1368--1369 (1972), Reh. den.

Neither the letter of August 23, 1972, nor the purchase order of March, 1973, set forth a quantity term. The letter merely identified the project, while the purchase order left the quantity term blank.

We reject plaintiff's invitation to resort to the evidence adduced at trial to supply the missing quantity term. The quantity term must appear on [69 MICHAPP 615] the confirmation without reference to parol evidence. ⁵ Since neither document specified a quantity...