Southwest Engineering Co. v. Martin Tractor Co.
| Decision Date | 17 July 1970 |
| Docket Number | No. 45735,45735 |
| Parties | , 7 UCC Rep.Serv. 1288 SOUTHWEST ENGINEERING COMPANY, Inc., a Corporation, Appellee, v. MARTIN TRACTOR COMPANY, Inc., a Corporation, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Under the provision of K.S.A. 84-2-201, the same being one of the provisions of the Uniform Commercial Code, the essential elements of an enforceable contract are (1) that it evidence a sale of goods, (2) that it be in writing signed by the party sought to be charged, and (3) that it specify quantity.
2. The necessary writing need not contain all the material terms agreed upon, provided the essential terms required by the statute are satisfied.
3. Even though one or more terms are left open, a contract of sale will not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.
4. Terms with respect to time and place of payment or delivery may be omitted from the written instrument required under 84-2-201.
5. Unless otherwise agreed upon, payment for goods sold is due at the time and place at which the buyer is to receive them, even though the place of shipment is also the place of delivery.
6. The term 'signed' as defined by K.S.A. 84-1-201(39) includes any symbol executed or adopted by a party with the present intention to authenticate a writing. The authentication may be printed, stamped or written and may be on any part of the document.
7. The writing required under 84-2-201 must be sufficient to indicate that a contract of sale has been made and to afford a substantial basis for a belief that it evidences a real transaction.
8. Findings of the trial court which are based on substantial, competent evidence are binding upon this court on appeal, even though there may have been evidence to the contrary.
9. The record is examined in an action to recover damages for breach of contract and for reasons which appear in the opinion it is held (1) that the contract of sale on which this action is based sufficiently complies with the requirements of the Uniform Commercial Code, (2) that the findings of the trial court are sustained by substantial competent evidence and (3) that the trial court did not err in entering judgment for the plaintiff.
Brock R. Snyder, of Lillard, Eidson, Lewis & Porter, Topeka, argued the cause and was on the brief for appellant.
Terry L. Bullock, of Cosgrove, Webb & Oman, Topeka, argued the cause and was on the brief for appellee.
This is an action to recover damages for breach of contract. Trial was had to the court which entered judgment in favor of the plaintiff. The defendant has appealed.
Southwest Engineering Company, Inc., the plaintiff, is a Missouri corporation engaged in general contracting work, while the defendant, Martin Tractor Company, Inc., is a Kansas corporation. The two parties will be referred to hereafter either as plaintiff, or Southwest, on the one hand and defendant, or Martin, on the other.
We glean from the record that in April, 1966, the plaintiff was interested in submitting a bid to the United States Corps of Engineers for the construction of certain runway lighting facilities at McConnell Air Force Base at Wichita. However, before submitting a bid, and on April 11, 1966, the plaintiff's construction superintendent, Mr. R. E. Cloepfil, called the manager of Martin's engine department, Mr. Ken Hurt, who at the time was at Colby, asking for a price on a standby generator and accessory equipment. Mr. Hurt replied that he would phone him back from Topeka, which he did the next day, quoting a price of $18,500. This quotation was re-confirmed by Hurt over the phone on April 13.
Southwest submitted its bid on April 14, 1966, using Hurt's figure of $18,500 for the generator equipment, and its bid was accepted. On April 20, Southwest notified Martin that its bid had been accepted. Hurt and Cloepfil thereafter agreed over the phone to meet in Springfield on April 28. On that date Hurt flew to Springfield, where the two men conferred at the airfield restaurant for about an hour. Hurt took to the meeting a copy of the job specifications which the government had supplied Martin prior to the letting.
At the Springfield meeting it developed that Martin had upped its price for the generator and accessory equipment from $18,500 to $21,500. Despite this change of position by Martin, concerning which Cloepfil was understandably amazed, the two men continued their conversation and, according to Cloepfil, they arrived at an agreement for the sale of a D353 generator and accessories for the sum of $21,500. In addition it was agreed that if the Corps of Engineers would accept a less expensive generator, a D343, the aggregate price to Southwest would be $15,000. The possibility of providing alternative equipment, the D343, was suggested by Mr. Hurt, apparently in an attempt to mollify Mr. Cloepfil when the latter learned that Martin had reneged on its price quotation of April 12. It later developed that the Corps of Engineers would not approve the cheaper generator and that Southwest eventually had to supply the more expensive D353 generator.
At the conference, Mr. Hurt separately listed the component parts of each of the two generators on the top half of a sheet of paper and set out the price after each item. The prices were then totaled. On the bottom half of the sheet Hurt set down the accessories common to both generators and their cost. This handwritten memorandum, as it was referred to during the trial, noted a 10 per cent discount on the aggregate cost of each generator, while the accessories were listed at Martin's cost. The price of the D353 was rounded off at $21,500 and D343 at $15,000. The memorandum was handed to Cloepfil while the two men were still at the airport. We will refer to this memorandum further during the course of this opinion.
On May 2, 1966, Cloepfil addressed a letter to the Martin Tractor Company, directing Martin to proceed with shop drawings and submittal documents for the McConnell lighting job and calling attention to the fact that applicable government regulations were required to be followed. Further reference to this communication will be made when necessary.
Some three weeks thereafter, on May 24, 1966, Hurt wrote Cloepfil the following letter:
'MARTIN TRACTOR COMPANY, INC.
Topeka Chanute Concordia Colby
CATERPILLAR*
'P. O. Box 1698
Topeka, Kansas
May 24, 1966
Mr. R. E. Cloepfil
Southwest Engineering Co., Inc.
P. O. Box 3314, Glenstone Station
Springfield, Missouri 65804
Dear Sir:
Due to restrictions placed on Caterpillar products, accessory suppliers, and other stipulations by the district governing agency, we cannot accept your letter to proceed dated May 2, 1966, and hereby withdraw all verbal quotations.
Regretfully,
/s/ Ken Hurt
Ken Hurt, Manager
Engine Division'
On receipt of this unwelcome missive, Cloepfil telephoned Mr. Hurt who stated they had some work underway for the Corps of Engineers in both the Kansas City and Tulsa districts and did not want to take on any other work for the Corps at that time. Hurt assured Cloepfil he could buy the equipment from anybody at the price Martin could sell it for. Later investigation showed, however, that such was not the case.
In August of 1966, Mr. Cloepfil and Mr. Anderson, the president of Southwest, traveled to Topeka in an effort to persuade Martin to fulfill its contract. Hurt met them at the company office where harsh words were bandied about. Tempers eventually cooled off and at the conclusion of the verbal melee, hands were shaken all around and Hurt went so far as to say that if Southwest still wanted to buy the equipment from them to submit another order and he would get it handled. On this promising note the protagonists parted.
After returning to Springfield, Mr. Cloepfil, on September 6, wrote Mr. Hurt placing an order for a D353 generator (the expensive one) and asking that the order be given prompt attention, as their completion date was in early December. This communication was returned unopened.
A final effort to communicate with Martin was attempted by Mr. Anderson when the unopened letter was returned. A phone call was placed for Mr. Martin, himself, and Mr. Anderson was informed by the girl on the switchboard that Martin was in Colorado Springs on a vacation. Anderson then placed a call to the motel where he was told Mr. Martin could be reached. Martin refused to talk on the call, on learning the caller's name, and Anderson was told he would have to contact his office.
Mr. Anderson then replaced his call to Topeka and reached either the company comptroller or the company treasurer who responded by cussing him and saying
Southwest eventually secured the generator equipment from Foley Tractor Co. of Wichita, a company which Mr. Hurt had one time suggested, at a price of $27,541. The present action was then filed, seeking damages of $6,041 for breach of the contract and $9,000 for loss resulting from the delay caused by the breach. The trial court awarded damages of $6,041 for the breach but rejected damages allegedly due to delay. The defendant, only, has appealed; there is no cross-appeal by plaintiff.
The basic disagreement centers on whether the meeting between Hurt and Cloepfil at Springfield resulted in an agreement which was enforceable under the provisions of the Uniform Commercial Code (), which was enacted by the Kansas Legislature at its 1965 session. K.S.A. 84-2-201(1), being part of the Code, provides:
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