Blue Rock Industries v. Raymond Intern., Inc.

Decision Date11 September 1974
Citation325 A.2d 66
Parties15 UCC Rep.Serv. 328 BLUE ROCK INDUSTRIES v. RAYMOND INTERNATIONAL, INC.
CourtMaine Supreme Court

Bennett & Schwarz, P. A., by Herbert H. Bennett, John N. Kelly, Portland, for plaintiff.

McLean, Southard & Hunt, by George H. Hunt, Augusta, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD, and DELAHANTY, JJ.

DUFRESNE, Chief Justice.

This is an action brought by the plaintiff, Blue Rock Industries (hereinafter Blue Rock), to recover $128,891.61 allegedly owed by the defendant for a quantity of sand which Blue Rock sold and delivered to the defendant. In the Court below the parties tried the case, at the outset, before a jury; during the course of the trial, however, it was agreed that the jury would be dismissed and the case tried by the Court sitting jury-waived. It was further agreed that neither party would request conclusions of law nor findings of fact and the presiding Justice would simply make a general finding for either party. 1 The Justice decided for Blue Rock in the amount of $114,231.27 and the defendant appeals. We deny the appeal.

Blue Rock is a Maine Corporation which, among other things, sells sand to contractors and subcontractors for use in road construction. Raymond International, Inc. (hereinafter Raymond), the defendant, is a foreign corporation properly doing business in Maine. One of Raymond's activities involves the construction of roads or highways. Raymond was interested in obtaining a subcontract for certain work on a highway being built in Maine. The job called for a quantity of sand. In order to prepare its bid, Raymond asked Blue Rock for the price at which Blue Rock would sell sand. 2 In a letter dated August 21, 1969, Blue Rock responded as follows:

'Our price would be as follows for truck measured sand delivered to the job site as you require:

$2.75 per cubic yard delivered to the north side of the project.

$2.60 per cubic yard delivered to the south side of the project.'

In a subsequent letter from Blue Rock to Raymond, dated August 25, 1969, it is noted that a Raymond representative had orally called Blue Rock's attention to the fact that the latter had inadvertently reversed its prive quotations, confusing the north side with the south. The letter further states that the correct prices for delivered sand 'truck measure' should be $2.75 per cubic yard for the south delivery site, and $2,60 per cubic yard for the north.

This price was subsequently negotiated downward to $2.65 per cubic yard (south) and $2.50 per cubic yard (north) and a letter from Blue Rock to Raymond dated August 29, 1969 purports to confirm an oral agreement to that affect. The letter confirming this new price retained the term 'truck measure' which had been used in the prior correspondence. At this time Blue Rock was in fact supplying sand to Raymond. Raymond in turn had been accepting and paying for the sand. The record does not indicate the manner by which Raymond informed Blue Rock as to the amount of sand to be purchased or how the sand was ordered, but this is not significant, since there is no controversy surrounding the parties' earlier transactions.

The controversy concerns sand subsequently delivered, after the parties had arrguably agreed to deal in terms of tons instead of the previously-used cubic yard measurement. During the initial negotiations, Blue Rock had no truck scales at the plant from which it was obtaining the sand. Scales were subsequently installed, which enabled Blue Rock to weigh its trucks and thus ascertain the exact weight of sand being sold. In conjunction with the acquisition of the scales, Blue Rock proposed to Raymond a modification of the terms of sale whereby the sand would thereafter be delivered and sold by the ton. There was evidence from which the trial Justice could find that Raymond acquiesced in the proposal.

It is not disputed that in converting to tons the parties intended that the overall amount which Raymond was to pay for the sand delivered would be the same as the price which would have been paid, had the original truck measured cubic yard basis been retained. The former price ($2.65 and $2.50 per cubic yard), therefore, had to be converted to a price per ton. In order to equate the price per ton with the price per cubic yard it was necessary to ascertain the number of tons in a cubic yard. 3 For example, if a cubic yard contained exactly 2000 pounds, one ton, then the price would be the same. If there were less than 2000 pounds in a cubic yard, then the price per ton would have to exceed the price per cubic yard.

Blue Rock produced oral evidence, disputed by Raymond, to the effect that representatives of both companies agreed to get together and weigh some truckloads of sand. They would then divide the weight of the sand in the truck by the truck's assigned cubic yard capacity and thereby obtain a conversion factor indicating the number of pounds in a cubic yard. When the Raymond representative failed to arrive for the weighing, the Blue Rock representative carried out the experiment himself. The results were related in a letter from Blue Rock to Raymond dated October 6, 1969. The pertinent paragraph of the letter states:

'We have weighed several of your days' shipments and find a factor of 2300 pounds per yard. On this basis the new price by the ton will be as follows:

South Side = $2.38 per ton delivered

North Side = $2.27 per ton delivered.'

On October 15, 1969, Raymond responded by sending Blue Rock a purchase order for 'approx.' 100,000 cubic yards of sand. Instead of stating the price in tons as quoted by Blue Rock, Raymond's purchase order read as follows:

'Prices shall be:

a. Two dollars sixty-five cents per cubic yard ($2.65/cy) truck measure for material delivered south of Fore River.

b. Two dollars fifty cents per cubic yard ($2.50/cy) truck measure for material delivered north of Fore River. You shall supply delivery tickets with each truck delivery which shall show delivered and tare weights of trucks. Weight of material per cubic yard for payment purposes shall be determined by an independent laboratory from samples of material supplied by ourselves.'

Blue Rock responded by letter dated November 3, 1969. The letter initially thanked Raymond for the purchase order. It went on to point out 'a couple of errors.' Only error number one is relevant to the present case, and concerning this the letter stated:

'1. Our present price of $2.38 and $2.27 per ton was based on the 2300 pound factor and our original 4 quote of $2.75 and $2.60 per cubic yard. (see our letters of August 25, 29 and October 6.) The price correctly should read $2.30 per ton South Side and $2.17 per ton North Side.'

Raymond did not immediately respond in writing to this letter. However, Raymond did thereafter accept and pay for sand the price of which was computed in accordance with the 2300 pound factor (i. e. $2.30 and $2.17 per ton).

In June of 1970 Raymond forwarded to Blue Rock a document referred to in the record as a 'follow-up purchase order.' Under the heading 'Prices shall be:' the order reads as follows:

a. Two dollars and thirty cents per ton ($2.30)-(Ton) truck measure for material delivered south of the Fore River.

b. Two dollars and seventeen cents per ton ($2.17)-(Ton) truck measure for material delivered north of Fore River.'

It may be noted at this point that these prices stated by Raymond were the same as those quoted by Blue Rock in its letter of November 3, 1969. That letter had stated that the quoted prices were based on the 2300 pound factor. Raymond's follow-up purchase order made no mention of its earlier purchase order which had stated that the weight of sand for payment purposes would be determined by an independent laboratory.

Blue Rock's records indicate that Raymond continued to accept, and pay for, the sand delivered and billed by the ton until November 3, 1970. On that date Raymond was credited with a payment of $65,555.92, which left an outstanding balance of $116,337.15. The final entry on the account is dated November 17, 1970, at which time Raymond's outstanding balance was shown to be $128,891.61, the amount sought by Blue Rock in the present action.

In defense of the claim, Raymond contends that Blue Rock's 2300 pound conversion factor is 'incorrect,' and that as a result of this error Raymond's indebtedness has been greatly inflated.

I.

Much of the confusion surrounding this appeal results from the fact that the parties have only casually referred to the Maine Uniform Commercial Code, 11 M.R.S.A. § 1-101 et seq., which governs this case. Raymond in its brief has cited section 2-319 of the Code 5 which, inter alia, discusses the meaning of the term 'F.O.B.' Here, however, there is no dispute as to the meaning of that term and it has no relevance to the issues presented. Blue Rock has cited the Uniform Commercial Code Comment to section 2-207 dealing with Raymond's duty to object to the terms proposed by Blue Rock, and section 2-208(1) dealing with the relevance of a course of performance in determining the meaning of an agreement. Although these cursory references to the Code are of little assistance in resolving the present dispute, they do at least indicate some awareness of the Code's applicability and run counter to any argument the other way.

Under section 2-102, Article 2 of the Code is made applicable to 'transactions in goods.' Section 2-105 broadly defines 'goods' as:

'all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action. 'Goods' also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (section 2-107).'

This definition is broad enough to...

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