Miller v. Belk
| Citation | 207 S.E.2d 792,23 N.C.App. 1 |
| Decision Date | 04 September 1974 |
| Docket Number | No. 7426SC465,7426SC465 |
| Parties | , 15 UCC Rep.Serv. 627 Peggy Sells MILLER, Individually and as Administratrix of the Estate of William Herbert Miller v. B. V. BELK, Jr., et al. |
| Court | Court of Appeal of North Carolina (US) |
John B. Whitley, Charlotte, for defendant appellant Kirkley.
No counsel contra.
The gravamen of this appeal is whether the trial court applied the proper measure of damages in determining that defendant is liable to plaintiff in the amount of $9,355.44. The trial judge arrived at this sum by computing the difference between the contract price and the resale price. Defendant contends that the amount of damages awarded was incorrect for the following reasons: (1) the Uniform Commercial Code (Code) controls and consequently a different measure of damages applies; (2) even if the Code does not apply, the general rule is that notice of resale must be given by the seller to the breaching party in order for the resale price to be considered.
G.S. § 25--2--102 of the Uniform Commercial Code defines the scope of Article 2 of the Code as follows: 'Unless the context otherwise requires, this article applies to Transactions in goods . . ..' (our emphasis) G.S. § 25--2--105 defines 'goods' to mean 'all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid investment securities (article 8) and things in action . . .' Thus, we must determine whether the sale of plaintiff's laundry and dry cleaning business involves a transaction in goods and comes within the scope of Article 2. Our research discloses that this is a case of first impression in this jurisdiction and that the issue of whether the sale of a business is a transaction in goods and thus subject to Article 2 of the Code is a question which has been discussed in only a handful of cases.
In Anderson, Uniform Commercial Code, § 2--105:5, pp. 226--27, it is stated that the sale of a business has been held to be a sale of goods within Article 2 of the Code. This authority also notes the '(w)here the assets of a going concern are sold, Article 2 applies to the transfer with respect to the goods portion although not applicable to the non-goods portion of the transaction . . .'
One of the first cases to face the issue now before us was Foster v. Colorado Radio Corporation, 381 F.2d 222 (10th Cir. 1967). In Foster, supra, the parties entered into a contract to sell a radio station and the buyer breached the contract. The 10th Circuit Court of Appeals held that the Uniform Commercial Code, although not relevant to the sale of non-goods such as goodwill, the radio station's license, and real property, was applicable to the sale of movable assets, e.g., office equipment and furnishings. In the course of its opinion the Court stated, Foster, supra, at 226. For another case in which the Code has been held to apply to the sale of a business, see Melms v. Mitchell, 266 Or. 208, 512 P.2d 1336 (1973).
It is our view that the sale of the business in the instant case is in reality nothing more than a sale of the equipment, furniture, and other movables of the business and as such is governed by the Code. At no point is there any mention that the sale of the laundry/dry cleaning business involves non-goods such as goodwill, real property, etc.; therefore, we hold the entire sale to be subject to the Code.
G.S. § 25--2--706 delineates one of the remedies available to a seller upon a breach on the part of the buyer. This remedy is resale of the goods which are the subject matter of the breached contract. 'Where th(is) resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this article (§ 25--2--710), but less expenses saved in consequence of the buyer's breach.' G.S. § 25--2--706(1). The measure...
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Herrick v. Robinson
... ... In a case in which the sale of a business involved goods only it was held that the Article applied but the rule of Foster was recognized. Miller [267 Ark. 592-F] v. Belk, 23 N.C.App. 1, 207 S.E.2d 792 (1974). It has also been held that, when the physical assets are of little significance in a ... ...
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Mbh, Inc. v. John Otte Oil & Propane, Inc.
... ... was applicable to sales of ongoing businesses. See, e.g., De Filippo v. Ford Motor Company, 516 F.2d 1313 (3d Cir.1975); Miller v. Belk, 23 N.C.App. 1, 207 S.E.2d 792 (1974). However, the facts in those cases differed from the facts presented in the instant case, as real ... ...
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Carolina Home Solutions 1, Inc. v. Crystal Coast Home Solutions, Inc.
... ... the common law rule applies in these circumstances, the Court ... notes that the North Carolina Court of Appeals concluded in ... Miller v. Belk, 23 N.C.App. 1, 207 S.E.2d 792 (1974) ... that "the sale of the business in the instant case is in ... reality nothing more than a sale of ... ...
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Wolpert v. Foster
... ... U.C.C. Comment 2, 21A M.S.A., § 336.2 706; Minn.St. 336.2 708(1); Miller v. Belk, 23 N.C.App. 1, 207 S.E.2d 792 (1974). An action for the price arises in this situation only when reasonable resale efforts do [312 MINN ... ...
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ANOTHER TRIP AROUND ARTICLE 2 REMEDIES: WHY THE U.C.C. PRECLUDES SELLERS FROM RECOVERING MARKET PRICE DAMAGES IN EXCESS OF RESALE DAMAGES.
...market price damages when seller resold the goods but failed to provide buyer with notice as required by Section 2-706); Miller v. Belk, 207 S.E.2d 792, 795 (N.C. Ct. App. 1974) (applying Section 2-708(1) damages when seller failed to give notice of resale to (49.) Coast Trading Co., 592 F.......