Kysar v. Lambert
| Decision Date | 04 January 1995 |
| Docket Number | 15593-1-II,Nos. 16373-0-I,s. 16373-0-I |
| Citation | 76 Wn.App. 470,887 P.2d 431 |
| Parties | , 27 UCC Rep.Serv.2d 865 Sam KYSAR and Joan Kysar, dba Lewis River Tree Farm, Respondents, v. George A. LAMBERT dba Lambert Rainbow Fruit Co., Appellant. |
| Court | Washington Court of Appeals |
Lindsey H. Hughes, Hallmark Keating & Abbott P.C., Portland, OR, Brian A. Gillis, Parker Coulter Daley & White, Boston, MA, for appellant.
William D. Robison, Morse & Bratt, Vancouver, for respondents.
George A. Lambert appeals a $28,000 judgment in favor of Sam and Joan Kysar. The Kysars cross-appeal an order denying reasonable attorney's fees. We affirm, except on the issues of terms and attorney's fees.
The Kysars grow Christmas trees in Clark County, Washington. They sell and ship the trees to distributors nationwide. In transit, the trees require a cool, moist environment for they can be damaged by temperatures that are too warm or too cold.
Lambert owns the Rainbow Fruit Co. in Boston, Massachusetts. He sells produce throughout the year, and Christmas trees during the Christmas season.
The Kysars sold trees to Lambert in 1987 and 1988. They shipped the trees from Washington to Massachusetts in refrigerated rail containers.
Lambert ordered trees again in 1989. According to Joan Kysar, he initiated the transaction on July 6, 1989, when he phoned the tree farm. According to Lambert, the Kysars initiated the transaction by contacting him in Boston.
In any event, it is undisputed that in July 1989 Joan Kysar filled out and signed a printed order form. She offered four loads of trees, at approximately 650 trees per load, for a total price of $30,160. She proposed a 25 percent deposit of $7,540, with the balance of $22,620 due on December 10, 1989. In handwriting on the front, she stated, "[a]ll trucks will be loaded to capacity." 1 In print on the back, the form stated:
The terms and conditions of the order documents applicable to this transaction shall be interpreted under the case and statutory law of the State of Washington. In the event any action is brought to enforce such terms and conditions, venue shall lie exclusively in Clark County, Washington. 2
Also in print on the back, the form contained an attorney's fee clause.
After signing the form, Joan Kysar mailed it to Lambert in Massachusetts. Later in July, he mailed it back with significant modifications. He reduced the number of loads from four to three; the number of trees per load from 650 to 550; and the total price from $30,160 to $19,140. He did not write in a method of shipment, or otherwise alter the handwritten statement that "[a]ll trucks will be loaded to capacity". He signed the form under a printed statement saying, "I have read and accept the Terms of Sale on the reverse side of this document." 3
On August 21, 1989, Lambert mailed the Kysars a letter and a 25 percent deposit ($4,785). The letter said:
We understand that shipping will be the same as last year. There will be three loads of 1,650 trees at $11.60 for a total cost of $19,140.00. 4
The Kysars understood the letter to mean that Lambert wanted the trees shipped by rail. According to their testimony, however, he later said he wanted the trees shipped by the least expensive means available, which was by truck.
In late November, the Kysars shipped three loads of trees by truck. 5 According to their testimony, Lambert was aware of the method of shipment before the first load left the farm.
Lambert inspected the trees when they arrived in Boston. According to his testimony, he found the trees "off-color" and the trucks "warm inside". 6 He then phoned the Kysars and rejected the trees. In his view, the trees "were neither properly shipped nor of the represented quality and, therefore, they failed to conform to the terms of his offer". 7
On and after December 10, Lambert refused to pay the balance of the contract price. However, he "followed reasonable instructions from the [Kysars] and made reasonable efforts to sell the trees". 8 According to his own testimony, he sold 810 trees for an average of about $40 each. He arranged for the remaining 1,420 trees to be chopped into mulch, at a cost of "$990 or $995". 9
On June 26, 1991, the Kysars filed suit in the Superior Court for Clark County, Washington. They prayed for $33,244.85, which they alleged to be the contract price plus shipping costs and accumulated interest.
In September 1991, Lambert filed a countersuit in the Massachusetts Superior Court. On the Kysars's motion, that suit was removed to the United States District Court in Boston. The Kysars then brought a motion to dismiss. The District Court granted the motion, ruling that "[a]ccording to the terms of the contract[,] suit must be filed in State Court in Washington." See Lambert v. Kysar, 983 F.2d 1110, 1112 (1st Cir.1993).
Lambert appealed to the United States Court of Appeals for the First Circuit. In 1993, that court affirmed by published opinion. 983 F.2d 1110.
Meanwhile, in January 1992, back in the Clark County Superior Court, Lambert moved to dismiss the Kysars's Washington suit for lack of personal jurisdiction. The trial court declined to apply the long-arm statute, because it thought there were insufficient minimum contacts between Lambert and the State of Washington. However, it found that the parties had consented to personal jurisdiction, because they had agreed that "venue shall lie exclusively in Clark County, Washington". The trial court denied the motion to dismiss.
A jury trial was held in July 1992. At the end of the evidence, the trial court instructed that there was a contract as a matter of law, but that there were jury questions on whether the trees were of the promised quality and had been properly shipped. 10 The court further instructed that if Lambert had rejected the trees, and if certain other conditions were satisfied, the Kysars had the right to recover the amount for which he had sold the trees, less reasonable expenses. 11
In their summation to the jury, the Kysars argued that Lambert had accepted the trees and was obligated to pay in accordance with the contract. See RCW 62A.2-301; RCW 62A.2-607(1). Alternatively, they argued that even if Lambert had rejected the trees, he was required to remit the amount for which he had sold the trees, less reasonable expenses. See RCW 62A.2-603. Based on Lambert's testimony, they said this amount was 810 trees multiplied by the average sale price of $40 per tree. 12 Lambert objected to the alternative argument, but the trial court overruled.
The jury returned a $28,000 verdict for the Kysars, 13 and the trial court entered judgment accordingly. The trial court also denied various post-trial motions, including the Kysars's motion for reasonable attorney's fees.
Both parties now appeal to this court. Lambert asserts error concerning contract formation, contract performance, personal jurisdiction, and several other matters. The Kysars assert error concerning reasonable attorney's fees.
Lambert argues that as a matter of law, the parties failed to form a contract. We disagree.
In Lambert v. Kysar, supra, the First Circuit ruled:
Under the law of both Massachusetts and Washington, the order form (signed and forwarded to Lambert in July 1989) comprised an offer to contract in accordance with its terms. It set forth in detail all the material terms essential to the proposed transaction, including the price, quantity and quality of the goods.
(Footnote omitted.) 983 F.2d at 1114.
Under the law of both Washington and Massachusetts, Lambert's substitution of a substantially lower quantity term amounted to a rejection of the Kysars' offer to sell, and a counteroffer to purchase the lesser quantity of trees....
983 F.2d at 1115. 15
Whether the Kysars accepted Lambert's counteroffer in August, by accepting his deposit check, or by seasonably shipping the number of Christmas trees requested in Lambert's counteroffer, under the law of both Washington and Massachusetts the Kysars accepted Lambert's counteroffer by November 1989 at the latest. The Kysars' acceptance, whenever it is deemed to have occurred, operated under the law of both jurisdictions to bind the contracting parties to all terms printed on the reverse side of the original order form, including the forum selection clause.
(Citations omitted.) 983 F.2d at 1116.
Although we are not obligated to adhere to this reasoning, we elect to do so because we find it persuasive with respect to the trial record before us. 16 Lambert's only significant response is that there could be no contract without a shipping term, and that no shipping term was agreed on by the parties. That response runs counter to the Uniform Commercial Code (UCC), which states that a contract can exist although one or more terms are left open. RCW 62A.2-204(3). Like the trial court and the First Circuit, we hold there was a contract as a matter of law.
Lambert says the Kysars should not have been allowed to argue, in their summation to the jury, that if he had rejected the trees, they were entitled to recover the proceeds for which he had sold the trees. 17 The Kysars's argument was based on RCW 62A.2-603, so we refer to it as a "603" argument.
After a seller has physically delivered goods pursuant to a sales contract that falls under the UCC, the rights of the seller and buyer are affected by at least two factors. One is whether the goods are conforming or nonconforming. Another is whether the buyer accepts or rejects the delivered goods. 18
These factors result in a consistent and comprehensive statutory scheme. (1) If the seller delivers conforming goods, which the buyer accepts, the buyer owns the goods, RCW 62A.2-401(2), and must pay in accordance with the contract. RCW 62A.2-301; RCW 62A.2-607(1). Assuming no evidence of breach, neither side will be entitled to damages.
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