Goodell v. K. T. Enterprises, Ltd., TT-242
| Decision Date | 10 March 1981 |
| Docket Number | No. TT-242,TT-242 |
| Citation | 394 So.2d 1087 |
| Parties | 31 UCC Rep.Serv. 129 John L. GOODELL et al., Appellants, v. K. T. ENTERPRISES, LTD., Appellee. |
| Court | Florida District Court of Appeals |
William H. Jeter, Jr., of Adams & Adams, Jacksonville, for appellants.
No appearance for appellee.
Better Baked Foods, Inc. (Better Baked) appeals a judgment holding appellee is not liable to Better Baked as a third party beneficiary of a breached contract between appellee and Goodell. Goodell also appeals, advocating that instead of awarding him only his deposit on the contract, the trial court should have allowed Goodell "cover" under Section 672.712, Florida Statutes (1977). We agree with both contentions. 1
Goodell initially contracted with appellee to build a continuous belt conveyor system. 2 The agreement provided that appellee would ship the unit to Better Baked and install it according to its direction. Tyler, appellee's president, admitted knowing the conveyor was for Better Baked's pizza freezing business. It was undisputed that the president of Better Baked discussed the design of the unit at length with Tyler. The record further indicates that in pre-contract negotiations, the sale was going to be directly with Better Baked. However, in the contract, Goodell indicated that "we" (obviously Better Baked and Goodell) had decided that Goodell would take title. Goodell paid $10,900 as a deposit on the contract. However, as the trial court found, the conveyor built by appellee did not meet the specifications. When it became apparent that satisfactory modifications could not be made, Goodell sent a mailgram to appellee informing Tyler that "we" decided to cancel the contract. 3 Goodell informed Tyler that if he returned the deposit money, the contract would be cancelled, and no other damages would be claimed. After approximately three weeks, Goodell sent another mailgram warning that if the deposit was not returned by December 15th, Goodell would "... sue for the deposit and for damages because of lost jobs, rent, extra expense because of delay, and the additional cost of another conveyor." However, the deposit was not returned. Goodell bought another continuous conveyor belt which was installed about five months later at a cost of $12,820 over Goodell's contract price. At trial, Better Baked presented evidence concerning its damages, including additional rental, overtime paid employees to fill orders for frozen pizzas, lost profits, and more.
The trial court found that Goodell was to purchase the equipment for use by Better Baked; that appellee breached the contract by failing to timely deliver and furnish the conveyor in compliance with the specifications; and that Goodell rescinded the contract and was entitled to return of his down payment with interest. The trial court ruled against Better Baked on the common law theory of third party beneficiary.
First, we think Goodell presented an unrebutted prima facie case for "cover" under Section 672.712 which provides:
(1) After a breach within the preceding section the buyer may "cover" by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.
(2) The buyer may recover from the seller as damages the difference between the cost for cover and the contract price together with any incidental or consequential damages as hereinafter defined (s. 672.715), but less expenses saved in consequence of the seller's breach.
(3) Failure of the buyer to effect cover within this section does not bar him from any other remedy.
There was no unreasonable delay in the purchase of the new unit because the unit had to be specially ordered. The unit clearly was bought as a substitute for appellee's unit. The testimony showed that the new unit and the unit contracted for were of the same...
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