Ho v. Wolfe

• Decision Date: 28 March 1985
• Docket Number: No. 07-84-0058-CV,07-84-0058-CV
• Parties: 41 UCC Rep.Serv. 95 Kenny Wk HO, Appellant, v. P.G. WOLFE, Appellee.
• Court: Texas Court of Appeals

Page 693

688 S.W.2d 693

41 UCC Rep.Serv. 95

Kenny Wk HO, Appellant, v. P.G. WOLFE, Appellee.

No. 07-84-0058-CV.

Court of Appeals of Texas,

Amarillo.

March 28, 1985.

Gary A. Ward, McCleskey, Harriger, Brazill & Graf, Lubbock, for appellant.

Donald M. Hunt, Carr, Evans, Fouts & Hunt, Lubbock, for appellee.

Before REYNOLDS, C.J., and COUNTISS and BOYD, JJ.

REYNOLDS, Chief Justice.

P.G. Wolfe brought this action against Kenny WK Ho for payment due under a contract of sale of restaurant property and inventory entered into by Wolfe, as seller, and Ho, as purchaser. Ho appeals from a judgment, rendered after a bench trial, decreeing that he pay Wolfe $3,500 plus $1,200 in attorney's fees. Determining that the trial court correctly rendered judgment, we affirm.

Ho and Wolfe entered into an agreement on 30 January 1981 for the sale of property and inventory of the Seven Seas restaurant, "described on Exhibit 'A' attached hereto and made a part hereof," for the sum of $7,000. An Exhibit "A" was never attached to the contract, but the parties are in agreement that the property and inventory purchased was that which was located both on the restaurant premises and at Wilkerson Storage Co. Ho subsequently took possession of the restaurant and the property located therein, but he did not pay Wolfe. Wilkerson Storage attempted to deliver the items in its possession to the restaurant; however, upon discovering the absence of eleven cases of shrimp from the delivery, which Ho believed he had purchased from Wolfe, Ho refused to accept the delivery.

The evidence revealed that the shrimp, valued by Ho to be worth $300 to $350 a case, along with twelve cases of gumbo had been removed from Wilkerson Storage by a previous manager of the restaurant prior to the execution of the contract. After a dispute arose concerning the inventory and property, Wolfe, apparently still believing and representing that the shrimp and gumbo were at Wilkerson Storage because they were listed on the 31 January 1981 storage bill, nevertheless told Ho's banker, Marshall Vose, Jr., who Ho appointed as his agent to renegotiate the contract, that he agreed to reduce the purchase price from $7,000 to $5,000. After discussing the reduction of price with Ho, and stating that he was under the impression that Ho had agreed to accept his offer, Wolfe drafted Ho's bank account for $5,000. However, payment of the draft was refused by Ho and Vose upon their determination that the shrimp and gumbo were no longer at Wilkerson Storage.

In its findings of fact and conclusions of law, the trial court found that Ho did not accept Wolfe's offer to reduce the price to be paid Wolfe, and that the parties did not modify, supersede or rescind the written contract. The court further found that Ho did not receive a portion of the goods and personal property which the parties contemplated would be delivered to him, resulting in a partial failure of consideration of the reasonable value of $3,500. The court concluded that Wolfe was entitled to recover $7,000 based upon the 30 January 1981 contract less a $3,500 offset for the partial failure of consideration. The court, acting on Wolfe's request that judicial knowledge be taken of usual and customary attorney's fees in the cause, determined that Wolfe was entitled to a reasonable attorney's fee of $1,200.

Ho contends in his first point of error that the contract is unenforceable because it did not include a specific description of the property or the quantity of inventory to be sold. Alternatively, Ho submits in and argues under his second point that he had a right to refuse the entire shipment from Wilkerson Storage because Wolfe failed to make a conforming tender of the delivery. In his third point Ho asserts that the trial court's finding that the parties did not modify, supersede or rescind the 30 January contract is against the great weight and preponderance of the evidence. Last, Ho contends the trial court erred in awarding attorney's fees to Wolfe because there is no evidence regarding the fees in the record.

It is decisive of Ho's first point of error that since the defense of unenforceability because of an insufficient property description was neither raised by Ho in his pleadings nor on trial of the cause, it cannot be asserted for the first time on appeal. State of Cal. Dept. of M. Hgy. v. Bank of S.W. Nat. Ass'n, 163 Tex. 314, 354 S.W.2d 576, 581 (1962); Stewart v. Breese, 367 S.W.2d 72, 73 (Tex.Civ.App.--Dallas 1963, writ dism'd). Moreover, even if we were to reach the merits of Ho's contention that the contract is unenforceable because it did not include specific descriptions or quantities, we would overrule the point.

Although the written contract itself did not describe the property with specificity nor provide the quantity, both parties knew, and there is no contention otherwise, that the items being sold were all of the inventory and property of the Seven Seas Restaurant located at the restaurant and Wilkerson Storage. Contemporaneous with the signing of the contract with Wolfe, Ho also executed a contract for his purchase of equipment of the same restaurant from the First National Bank of Lubbock. Ho inspected the inventory at the restaurant before signing the contracts and, rather than making an inspection of the goods in storage, he stated that he relied on Wolfe's representations, specifically that, among other items, there were eleven cases of shrimp. A bill of sale, although whether it was ever delivered to Ho is uncertain, was executed on 10 February 1981 by South Plains Seafood, Inc. and P.G. Wolfe acknowledging the sale and delivery of "[a]ll inventory located on the premises of Seven Seas Restaurant, 1607-50th Street, Lubbock, Texas, and all inventory of Seven Seas Restaurant located at Wilkerson Cold Storage."

Therefore, in any event, the above evidence shows there was no doubt in the minds of the parties as to the identity of the inventory and property involved, see Flow v. Friesen, 213 S.W.2d 873, 875 (Tex.Civ.App.--San Antonio 1948, writ ref'd n.r.e.), and although the goods sold were not itemized, this does not make the contract unenforceable because the parol evidence and conduct of the parties removed any uncertainty as to what was purchased. Id.; Beall v. Hardwicke-Etter Company, 460 S.W.2d 516, 519 (Tex.Civ.App.--Waco 1970, writ dism'd). Point of error one is overruled.

Ho argues under his second point that he was within his rights to reject the entire delivery from Wilkerson as a nonconforming tender under section 2.601 of the Uniform Commercial Code (Vernon 1968), and therefore the judgment against him is inconsistent with section 2.601. In this connection, the Code provides that

if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may

(1) reject the whole; or

(2) accept the whole; or

(3) accept any commercial unit or units and reject the rest.

Tex.Bus. & Com.Code Ann. § 2.601 (Vernon 1968).

Therefore, even assuming that Ho was entitled to reject the Wilkerson Storage delivery, a part of the tender of the goods sold, the evidence conclusively shows that he did take and retain possession of the tendered goods located at the restaurant. A buyer's rejection of goods must be clear and unambiguous, Explorers Motor Home Corp. v. Aldridge, 541 S.W.2d 851, 854 (Tex.Civ.App.--Beaumont 1976, writ ref'd n.r.e.), and the determination of what actions amount to an acceptance or rejection in a particular case is generally made by the trier of fact. Wilson v. Remmel Cattle Co., Inc., 542 S.W.2d 938, 941 (Tex.Civ.App.--Amarillo 1976, writ ref'd n.r.e.); Pacific Products v. Great Western Plywood, 528 S.W.2d 286, 295 (Tex.Civ.App.--Fort Worth 1975, no writ). The receipt and retention of the goods tendered by delivery have been held sufficient to constitute an acceptance under section 2.606(a) of the Texas Business and Commerce Code Annotated (Vernon 1968). Stone v. Metro Restaurant Supply, Inc., 629 S.W.2d 254,...