Martco, Inc. v. Doran Chevrolet, Inc., 21065

• Decision Date: 05 May 1982
• Docket Number: No. 21065,21065
• Citation: 632 S.W.2d 927
• Parties: 33 UCC Rep.Serv. 1619 MARTCO, INC., Appellant, v. DORAN CHEVROLET, INC., Appellee.
• Court: Texas Court of Appeals

Page 927

632 S.W.2d 927

33 UCC Rep.Serv. 1619

MARTCO, INC., Appellant, v. DORAN CHEVROLET, INC., Appellee.

No. 21065.

Court of Appeals of Texas, Dallas.

May 5, 1982.

Richard D. Pullman, Pullman & Schendle, Dallas, for appellant.

Keith E. Davis, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for appellee.

Before CARVER, STOREY and GUILLOT, JJ.

STOREY, Justice.

This is an appeal from a summary judgment granted in favor of Doran Chevrolet in a claim against, and in defense of a counterclaim brought by, Martco, Inc. Martco concedes the validity of the summary judgment as to Doran's claim, but contends that its response to Doran's motion for summary judgment raised a fact issue precluding summary judgment on the counterclaim. Doran, by cross-point, claims that the court erred in refusing to award attorney's fees in defending Martco's counterclaim. Disagreeing with all of these contentions, we affirm.

Doran Chevrolet is an automobile dealership from whom Martco occasionally purchased truck chassis to be built into trucks for particular uses for foreign and domestic clients. In purchasing one such truck chassis, Martco failed to pay. That failure is the subject of Doran's claim against Martco. Martco's claim against Doran involves, according to Martco's evidence, a complex financing arrangement for the purchase of 24 truck chassis upon assignments of letters of credit. Martco contends that the parties entered into such an agreement orally, and that their summary-judgment proof sufficiently established the existence of such a contract to preclude the entry of summary judgment. In support of the contract, Martco offers a writing which, it claims, satisfies the statute of frauds. The sufficiency of the writing is the key disputed question in this appeal.

The writing in question is on Doran Chevrolet stationery and is signed by Craig Arledge, apparently a sales agent for Doran. The memo is entitled: "Price Worksheet" and indicates that it is a "Competitive Equalization Request." It includes a quantity term (24), but indicates that it is for bid purposes: the only date on the memo is labelled "Bid Opening Date." The affidavit of Martco's own Vice-President confirms that this writing is not in confirmation of the contract but, in fact, formed the basis on which he later claims to have placed an order for the truck chassis. The writing clearly contemplates a contract to be made in the future. The facts and circumstances surrounding these events merely confirm that the writing is not a confirmation of a pre-existing agreement, but constitutes an offer for an agreement that was not entered into until much later, if at all. Our inquiry is whether such a writing will satisfy the statute of frauds.

Tex.Bus. & Com.Code Ann. § 2.201(a) (Vernon 1968), reads as follows:

Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

The statute requires that the writing be sufficient to indicate that a contract has been made. Although we are directed to no Texas case, authorities in other jurisdictions uniformly interpret this phrase to disqualify writings which contain "futuristic" language as not confirmatory of a contract already in existence. Azevedo v. Minister 86 Nev. 576, 471 P.2d 661 (1970); Harry Rubin & Sons, Inc. v. Consolidated Pipe Company of America, Inc., 396 Pa. 506, 153 A.2d 472 (1959); Arcuri v. Weiss, 198 Pa.Super.Ct. 506, 184 A.2d 24 (1962); M. J. McCarthy Motor Sales Co. v. Van C. Argiris & Co., 78 Ill.App.3d 725, 33 Ill.Dec. 529, 396 N.E.2d 1253 (1979); Nations Enterprises, Inc. v. Process Equipment Co., 40 Colo.App. 390, 579 P.2d 655 (1978); First American Farms, Inc. v. Marden Mfg. Co., 255 So.2d 536 (Fla.Dist.Ct.App.1972); In re...