This case arose out of an action brought by Howard Construction Company (hereinafter “Howard Construction” or “Plaintiff”) against Jeff-Cole Quarries, Inc. (hereinafter “Jeff-Cole” or “Defendant”), seeking damages on a breach of contract theory (Count I), or in the alternative, a promissory estoppel theory (Count II). The trial court granted summary judgment in favor of defendant on both Counts. Plaintiff contends on appeal that the trial court (1) erred in granting defendant’s motion for summary judgment as to Count I beсause defendant failed to meet the burden of proof under Rule 74.04 1 and (2) erred in finding that the statute of frauds barred Count I of plaintiff’s complaint. We affirm the judgment.
*225 Howard Construction was the successful bidder on a Missouri Highway Department project to construct a portion of Highway 54. Before Howard Construction was awarded the contract, it received from Jeff-Cole a typewritten document entitled “Proposal” 2 which referred to the Missouri Highway Project and listed descriptions, quantities and prices on types of rock needed for the project. The proposal contains six separate entries including a base type and asphaltic types of rock. It was dated November 21, 1972, and was signed by Harry Adrian, president of Jeff-Cole. The bid letting for the highway project took place in December, 1972, and Howard Construction was awarded the contract. Within a few weeks after the bid letting, the general superintendent of Howard Construction, Glenn Moore, met with Harry Adrian at defendant’s оffice. The foregoing facts are not in dispute.
The parties do disagree, however, as to what occurred at that meeting. Plaintiff contends that Glenn Moore and Harry Adrian reached an oral agreement at the meeting and that Glenn Moore altered the typewritten prices on the proposal in his own handwriting to reflect the agreement that was reached. Plaintiff relies on Glenn Moore’s deposition which reads as follows:
Q: Now, this particular document appears to have some figures written on it. Do you know anything about the various figures that are written in over the typing?
A: Yes, sir.
Q: What are those figures?
A: Those is [sic] after we got the job I went to Jeff-Cole's office and sat down with them. And those are the prices we came up with.
Q: All right, when you ’ say you sat down with them, are you talking about Roger Adrian and Harry Adrian?
A: I’m talking about Harry Adrian.
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Q: Whose handwriting are those figures in if you know?
A: They are mine.
Q: You after discussion with Harry Adrian, changed—
A: We agreed on those prices that’s [sic] written in.
Although defendant admits in its pleadings that discussions ensued between Jeff-Cole and Howard Construction, defendant denies that any agreement was ever reached in those discussions. Thus, the only disputed fact is whether the parties ever arrived at an agreement for the sale of asphaltic rock.
After the meeting between Mr. Moore and Mr. Adrian, at which the proposal was altered, Howard Construction, on January 12, 1973, mailed a purchase order to Jeff-Cole. It contained essentially the same items, quantities and prices listed on the altered proposal. The only other written document is a formal contract dated June 12, 1973, for the sale of base rock signed by agents of both parties. The subject matter of the contract, a base rock, is of the same description, quantity and price as the second entry on the altered proposal and the first entry on the purchase order. 3 The contract, however, does not refer to any of the other types of rock which the proposal and the purchase order listed.
On appeal, Howard Construction first claims that defendant failed to meet the burden of proof under Rule 74.04 and that the trial court’s grant of summary judgment wаs therefore in error. Howard Construction contends that a genuine issue exists as to a material fact because the parties dispute whether or not they ever entered into an agreement for the sale of asphaltic rock.
Summary judgment is authorized where, but only where, the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
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and that any party is entitled to a judgment as a matter of law.” Rule 74.04(c). (As no affidavits werе filed in this case, the record before us consists of the pleadings, the three documents they incorporate [the proposal, the purchase order, and the contract], and the deposition of Glenn Moore.) The reviewing court, as well as the trial court, must view the record on a motion for summary judgment in the light most favorable to the party against whom the motion was filed,
Stanturf v. Sipes,
Jeff-Cole contends, however, that summary judgment was properly granted because this dispute does not involve material facts, “i.e., those which have legal probative force as to a controlling issue.” Kohn v. Cohn, supra, at 443. Defendant argues that the dispute over whether an agreement was reached does not involve material facts because even if the court accepts as true plaintiff’s assertion that an oral agreement was reached, the statute of frauds bars enforcement of that agreement.
If' the contract for the sale of asphaltic rock is indeed unenforceable because of the statute of frauds, then the issue whether the oral contract was made is not a material issue of fact which would preclude the entry of summary judgment for Jeff-Cole.
Hammonds v. Calhoun Distributing Co., Inc.,
Subsections (1) and (2) of § 400.2-201 4 read:
(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars 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.
(2) Between merchants if within a reasonable time a writing in confirmation of the cpntract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.
Subsection (1) sets forth the basic rules for satisfying the statute of frauds in a contract for the sale of goods for $500 or more. The Official Comment to the Uniform Commercial Code establishes “three definite and invariable requirements” as to the writing. First, the memorandum must evidence a contract for the sale of goods; second, it must be “signed,” a word which includes any authentication which identifies the party to be charged; and third, the memorandum must specify a quantity.
Subsection (2) eliminates the signature requirement when both parties are merchants.
5
If the merchant sending the confirmatory memorandum has met the requirements of the subsection and if the merchant receiving the writing does not give any notice of objection within ten days of its receipt, then the confirmatory writing need not be signed by the receiving merchant in order to satisfy the statute of frauds. Courts have, however, required that the writing be signed by the sender in
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order to be “sufficient against the sender.
E.g., Evans Implement Co. v. Thomas Industries, Inc.,
The primary requirement under both subsections (1) and (2) is that the writing evidence an agreement between the parties. Although the language of the two subsections differs in that subsection (1) requires “some writing sufficient to indicate that a contract for sale has been made” and subsection (2) requires “a writing in confirmation of the contract and sufficient against the sender,” courts have found that the § 2-201(2) confirmatory memorаndum must satisfy the “sufficient to indicate” requirement of § 2-201(1).
Harry Rubin & Sons, Inc. v. Consolidated Pipe Co. of America, Inc.,
The official comment to U.C.C. § 2-201 explains that “[a]ll that is required” for a writing to sufficiently indicate that a contract for sale has been made “is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction.” One writer has suggested that the spirit of the comments seems to be that “sufficient to indicate” is roughly equivalent to “more probably than not.” J. White, supra, at 62. In other words, if it is more probable than not that the writing evidences a deal between the parties, then the writing should be found sufficient.
Case law on the “sufficient to indicate” requirement arises from interpretations of both § 2-201(1) and (2). Most courts have required that the writing indicate the consummation of a contract, not mere negotiations.
See, e.g., Oakley v. Little,
The Kansas Supreme Court, however, in
Southwest Engineering Co., Inc. v. Mar
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tin Tractor Co., Inc.,
The court’s finding that the writing evidenced a contract has been severely criticized. See 84 Harv.L.Rev. 1737 (1971). That criticism stems from the fact that “[t]he memorandum before the court — on its face nothing more than a price list — was proof not of agreement, but, at most, only of negotiations.” Id. at 1738. Finding such writing sufficient plants the seeds for allowing the statute of frauds to be satisfied by any evidence of mere negotiations.
While U.C.C. § 2-201 was indeed designed to eliminate much of the rigidity produced by prior interepretations of the statute of frauds, it retained some safeguards against fraudulent commercial practices.
Arcuri v. Weiss, supra,
In the case at bar, the writings are similar to the document in Southwest Engineering. We hold that they do not satisfy the requirements of U.C.C. § 2-201(1) or (2) because the writings, considered either separately or together, do not even allow for the inference that an agreement had been reached between the parties for the sale of asphaltic rock.
Although the typewritten proposal was signed by an agent of Jeff-Cole (prior to the handwritten alterations made thereon by plaintiff’s agent) and states specific quantity terms, no words on the writing allow for the inference that any agreement was reached between the parties and therefore it does not by itself meet the primary requirement of either § 2-201(1) or (2). 6 Viewed in the light most favorable to the plaintiff, the unaltered proposal could be no more than an offer by Jeff-Cole. 7
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Assuming that the typewritten proposal was an offer, neither the alterations made on the proposal by Glenn Moore nor the purchase order sent by Howard Construction to Jeff-Cole could constitute an acceptance. Although U.C.C. § 2-207 rejects the common law mirror image rule and converts mаny common law counteroffers into acceptances, no contract is formed when the acceptance diverges significantly as to a material term.
See Duval & Co. v. Malcom,
Because the price terms of the alterations and the purchase order radically differ from the price terms of the unaltered proposal, thеy could indeed constitute a counteroffer.
Meister v. Arden Mayfair, Inc., supra,
Although Howard Construction concedes that the handwritten alterations on the proposal were made by Glenn Moore (Howard Construction’s agent)
after
the proposal was signed by Jeff-Cole’s agent, Howard Construction appears to argue that the proposal as altered reflects an аgreement reached by the parties and thus satisfies § 2-201(1). Plaintiff argues that Glenn Moore’s deposition, in which he asserted that he and Harry Adrian “agreed on those prices that’s written in,” tends to prove that an agreement was reached. While such evidence is indeed relevant to the issue of whether an agreement was reached between the parties (and would prevent the grant of summary judgment in favor of Jeff-Cole were it not for the bar of the statute of frauds), it is not relevant to the issue of whеther the
writing itself
reflects an agreement.
R.S. Bennett & Co., Inc. v. Economy Mechanical Industries, Inc.,
Howard Construction confuses the parol evidence rule with the statute of frauds requirements. The parol evidence rule presupposes a contract has been made and is concerned only with what the terms of that contract are. Thus, the parol evidence rule provides that a written agreement, incomplete on its face, may be supplemented or explained by testimony concerning a prior or contemporaneous agreement, if such parol evidence is consistent with the written agreement.
See South Side Plumbing Co. v. Tigges,
Thus, the determination of whether the altered proposal satisfies the statute of frauds requirement that the writing at least allow for the inference that an agreement was reached, must be made by lоoking solely to the writing itself. In so doing, we find that the proposal as altered by Glenn Moore’s handprinted figures does not contain any terms which indicate that an agreement had been reached. The altered proposal is similar to the typewritten proposal in that neither contains terms from which the inference can be drawn that an agreement was reached between the parties. Compare M.K. Metals, Inc. v. Container Corp., supra. At best, the altered proposal may allow for the inference that the parties hаd negotiated. 8
Howard Construction next contends that the purchase order sent by them to Jeff-Cole is a confirmatory memorandum which meets the requirements of § 2-201(2). The requirement under § 2-201(1) that the writing evidence an agreement applies with equal force to § 2-201(2). Perdue Farms, Inc. v. Motts, Inc. of Mississippi, supra. The purchase order thus fails to meet the requirements of § 2-201(2) for the same reason that the proposal (in its typewritten and altered form) failed to meet the requirements of § 2-201(1). It does not indicate that an agreement had been made. The purchase order, like the proposal, is void of any terms on its face which indicate or would allow us to infer that an agreement was ever reached between the parties. See Trilco Terminal v. Prebilt Corp., supra; Harry Rubin & Sons v. Consolidated Pipe Co. of America, Inc., supra. Nor does the fact that the terms of the purchase order correspond to the terms of the altered proposal create any basis on which we can make such an inference, either. Compare M.K. Metals, Inc. v. Container Recovery Corp., supra (where the terms of the purchase order allowed for inference of agreement even though no words indicating or referring to an agreement appeared in the writing). As we stated above, the altered proposal, at best, reflects nothing more than negotiations. It does not indicate that an agreement was ever reached between the parties for the sale of asphaltic rock.
None of the writings, whether analyzed separately or in conjunction with each other allows for the inference that an agreement was reached between Jeff-Cole and Howard Construction. The primary requirement under § 2-201(1) and (2) that the writing evidence a contract has thus not been satisfied. The statute of frauds therefore bars further evidence of the alleged agreement and bars enforcement of the same as a matter of law. Womack v. Worthington, supra; Hammonds v. Calhoun Distributing Co., supra. Because the alleged oral contract for the sale of asphaltic rock is unenforсeable as a matter of law under the statute of frauds, we hold that the trial court’s grant of summary judgment in favor of Jeff-Cole was proper.
Howard Construction’s contention that the statute of frauds should not bar Count I of its complaint because the “defendant has performed in part,” is without merit. U.C.C. § 2-201(3)(c) provides:
*231 (3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
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(c) with respect to goods for which payment has been made and aсcepted or which have been received and accepted....
The exception to the writing requirement in this subsection limits enforceability to the goods that the buyer has received and accepted or paid for.
Sedmak v. Charlie’s Chevrolet, Inc.,
This subsection validates a divisible contract only for as much of the goods as have been delivered and paid for. Sedmak v. Charlie’s Chevrolet, Inc., supra. Only the base rock — the subject matter of the formal contract — was delivered and paid for. No asphaltic rock — the subject matter of the alleged oral contract — was ever delivered or paid for. The delivery of the base rock can only be deemed complete performance of the parties’ separate contract for the sale of base rock. Thus, the statute of frauds still bars enforcement of Howard Construction’s alleged oral contract for the sale of asphaltic rock.
We do not consider whether the trial court erred in granting summary judgment in favor of defendant as to Count II because plaintiff failed to preserve the issue for appeal.
See Ramacciotti v. Joe Simpkins, Inc.,
Accordingly, we affirm the judgment of the trial court.
All concur.
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Notes
. The "Rules” referred to are the Missouri Rules of Civil Procedure.
. See the Appendix to this opinion for a copy of the ‘‘Proposal”.
. The contract was for the sale of: “ITEM NO. 304-01.02 TYPE 1 AGGR. FOR BASE APPROX. 99,600 TONS FOR A PRICE PER TON OF $1.55 WATER INCLUDED.” The purchase order is reproduced in the appеndix to this opinion.
. Revised Statutes of Missouri, 1978. Chapter 400 of the revised statutes contains the Uniform Commercial Code as adopted in Missouri. For convenience, only the U.C.C. section and subsection numbers are used here.
. That both parties are "merchants” within § 2-201(2) is not contested.
See A & G Const. Co., Inc. v. Reid Bros. Logging Co., Inc.,
. The proposal could not suffice as a confirmatory memorandum under § 2-201(2) for the оbvious reason that it was not delivered to Jeff-Cole.
. A question remains as to whether the unaltered proposal even constituted an offer as opposed to a mere invitation to deal. Ordinarily, preliminary price quotations are not considered offers binding on the supplier.
Thomas J. Shehan Co. v. Crane Co.,
. As was explained above, the altered proposal might also constitute a counteroffer by Howard Construction but as no acceptance was ever given by Jeff-Cole to Howard Construction for the sale of asphaltic rock, the writings evidence only negotiations.