Duval & Co. v. Malcom, s. 29392
| Decision Date | 05 February 1975 |
| Docket Number | 29393,Nos. 29392,s. 29392 |
| Court | Georgia Supreme Court |
| Parties | , 16 UCC Rep.Serv. 1217 DUVAL & COMPANY v. H. A. MALCOM et al. H. A. MALCOM et al. v. DUVAL & CO. |
Preston & Allgood, William L. Preston, Monroe, for appellant.
Campbell & Bouchillon, W. K. Campbell, Covington, for appellees.
Syllabus Opinion by the Court
This equity case involves a purported contract for the sale of cotton, and comes here on certificates from the denial of cross motions for summary judgment. We affirm.
Malcom et al., defendants-growers, in March of 1973 tendered to Mr. Duval, agent for plaintiff-buyer, a signed document constituting a proposed contract, offering to sell their 'entire crop of 1973 cotton of 729.6 acres plus any addition that may be leased prior to plainting.' Price and terms were set out. Apparently this document had been drafted by buyer, and the record made on these cross motions did not show that any agreement was reached orally prior to the writing. Growers' understanding was that buyer would execute the proposed contract out of their presence and they thereupon left for lunch, returning to pick up their copy and discovering that prior to executing the document buyer had added language to it. Specifically, to the front of the document these words were added: 'Projected yields and farm numbers on back.' The back of the document listed 15 farms by number, acreage of each, and this language: '600 pounds per acre or approximately 857 b/c (bales of cotton).' Growers vehemently protested this addition, declaring their belief that no contract existed, and refusing to be bound by any estimate. The record showed their 1971 crop on basically this acreage had been 756 bales which they sold under contract to buyer, and their 1972 crop, which they did not sell to buyer, had been only 380 bales. Buyer then added yet more language to the back of the document: 'Buyer will accept all of the cotton produced on this acreage regardless of whether it is more or less than the projected yield.' Growers reiterated their belief that no contract existed, and left. Some months later, on September 10th 1973, growers' attorney wrote buyer informing buyer that growers considered the 'contract' nonexistent. Buyer's suit for specific performance followed.
Our first task on this appeal is to characterize buyer's response to growers' offer: was it an acceptance or was it a counter-offer? Buyer urges that the added language was of no legal effect and constituted only an immaterial alteration not shown to be fraudulent, citing Code §§ 20-802 and 20-803. These sections are inapplicable because they presuppose that a contract exists, and our task is to ascertain whether the point of contracting was ever reached by these parties. Nor can we do as buyer asks and lump the two episodes of document modification together. What was initially proffered to growers was not the estimate plus the 'more or less' language, but the estimate language alone; and the effect of this proffer must be determined.
Following growers' offer of an output contract specifying no amount (see Harris v. Hine, 232 Ga. 183, 205 S.E.2d 847), buyer added an 'estimate' of the number of bales to be delivered. We temporarily stop here, for purposes of this analysis. In this factual context, by reason of Code Ann. § 109A-2-306 defining an output contract, buyer's addition would materially have changed the proposed agreement to the growers' disadvantage. That section provides that where no estimate is stated seller is limited only in that he may not tender an amount unreasonably disproportionate to 'comparable prior output,' that is, 756 bales in 1971 but only 380 bales in 1972; whereas where an estimate is stated, the tender must not be unreasonably disproportionate to the estimate-875 bales. Thus, buyer attempted a material alteration in the quantity term though he argues that his conduct amounted to an acceptance. We cannot agree under traditional offer-acceptance rationale, nor does the Uniform Commercial Code change the result here. Though the Uniform Commercial Code does apply to this purported cotton agreement (Code Ann. §§ 109A-2-105(1); 109A-2-102) it is important to note here that Code Ann. § 109A-2-207 is inapplicable because we do not have a 'definite and seasonable expression of acceptance' which 'states terms additional to or different from those offered' within the meaning of section 207. That section, which is designed to avoid frustrating the parties' actual intent to agree merely because the wording of their forms is conflicting (see generally, Kock, Georgia Commercial Practice, § 1-3 (1964)), is described as follows in Official Comments 1 and 2 thereto:
'1. This section is intended to deal with two typical situations. The one is where an agreement has been reached either orally or by informal correspondence between the parties and is followed by one or both of the parties sending formal acknowledgments or memoranda embodying the terms so far as agreed upon and adding terms not discussed. The other situation is one in which a wire or letter expressed and intended as the closing or confirmation of an agreement adds further minor suggestions or proposals such as 'ship by Thursday,' 'rush,' 'ship draft against bill of lading inspection allowed,' or the like.
UCC Reporting Service, Par, 2207 (Callaghan & Company, 1967).
We conclude that the section is inapplicable because under the evidence adduced on the motions, no deal had in fact been closed, and there was no meeting of the minds of the parties. The question whether there has been acceptance is answered not only by reference to section 2-207, but also to Sections 2-204 and 2-206. 3 Duesenberg and King, Sales & Bulk Transfers Under the Uniform Commercial Code §§ 3.03(1)(a), 3.05 (Bender & Company, 1966). The thrust of those sections is to require that the parties reach agreement: 'The concepts of mutual assent and intention to accept the terms of an offer are not jettisoned by the Code, and a variance of the type suggested (a price disagreement) is so great that, irrespective of the words used, there should not be held to have come into existence a binding contract . . . Only where all the traditional criteria are met showing that a contract has been made should Section 2-207 be applied; only then should the presumptions of Section 2-207 as to...
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