Owens v. Clow Corporation, 73-2377.
| Decision Date | 15 March 1974 |
| Docket Number | No. 73-2377.,73-2377. |
| Citation | 491 F.2d 101 |
| Parties | George H. OWENS, Sr., doing business as American Contractors, Plaintiff-Appellee-Cross Appellant, v. CLOW CORPORATION et al., Defendants-Appellants-Cross Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Allen Poppleton, William M. Warren, Jr., Birmingham, Ala., for defendants-appellants.
Harry Cole, Montgomery, Ala., for plaintiff-appellee.
Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
Plaintiff Owens and others bid on the job of installing a plastic pipe water system for a small Alabama community. Several bidders including Owens received from defendant Clow written proposals to supply for the job the 143,500 feet of 6" pipe and 103,000 feet of 3" pipe that appeared to be required. Owens was low bidder and orally ordered from Clow for the job pipe of these two sizes. Clow sent Owens an invoice setting out the above quantities, and the prices, for the two sizes of pipe. Neither the proposal nor the invoice prescribed times for delivery. According to the testimony of Owens, in the telephone conversation in which he ordered the pipe it was agreed that Clow would deliver a truck load of pipe a day.
Clow satisfactorily delivered the 3" pipe as agreed but fell behind in delivering the 6" pipe in the manner described by Owens as having been orally agreed upon. Owens fell behind on the job and suffered delay-associated damages. Ultimately he terminated his arrangement with Clow and obtained pipe elsewhere at a higher price. Additionally, during the course of the job change orders were issued requiring Owens to lay more pipe of both sizes than the amounts specifically listed in Clow's proposal.
Owens sued Clow and in a jury trial the jury found the issues in favor of Owens.1
The major point on appeal arises from Clow's insistence that under the Uniform Commercial Code as adopted in Alabama, Tit. 7A, Code of Alabama (Recompiled), the written documents — the proposal and Clow's confirming invoice — created a contract enforceable only to the extent it had been performed by the parties, because the documents did not cover terms of delivery and delivery could not be the subject of a supplementary oral agreement. Tit. 7A, § 2-201(1) provides:
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 or 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 Official Comment to § 2-201 says:
It is implicit in Tit. 7A, § 2-309 that agreement concerning time of delivery is not a condition precedent to the existence of an enforceable contract. That section provides in pertinent part:
(1) The time for shipment or delivery or any other action under a contract if not provided in this article or agreed upon shall be a reasonable time.
The Official Comment states:
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