184 Conn. 10 | Conn. | 1981
This ease arises out of a series of contracts for the sale of steel rod and wire. The plaintiff seller, Superior Wire and Paper Products, sued the defendant buyer, Taleott Tool and Machine, Inc., and the defendant guarantors, George Roy, Alan Roy and Roy Machinery & Sales, Inc., to recover the unpaid purchase price of shipments of steel. The defendants, by their answer and counterclaim, put into issue the conformity of the goods tendered, and sought damages for breach of warranty. The defendant guarantors also challenged the enforceability of their guaranty. The trial court found all of the issues for the plaintiff, and accordingly rendered a judgment for $110,994.04 in its favor. All the defendants have appealed.
The underlying facts found by the court and set forth in the memorandum of decision and the record are as follows. The plaintiff, Superior Wire and
At the end of June, 1974, Taleott owed $137,454.17. Concerned about the size of this debt, Superior’s president went to Talcott’s place of business to have a conversation with the defendant George Roy, an officer of Taleott. Several days later, on July 3, 1974, the defendants George Roy, Alan Roy and Roy Machinery & Sales, Inc., wrote Superior guaranteeing payment for goods ordered by Taleott from Superior. Some time subsequent to the guaranty, Taleott furnished Superior further security in the form of a letter of credit for $200,000 which expired at the end of September. At the time of the letter of credit, Talcott’s billings from Superior were $325,000. There were further shipments by Superior after expiration of the letter of credit.
In the fall of 1974, steel prices fell precipitously. By November, Superior had stopped receiving payments from Taleott. In December, Taleott notified Superior that discontent with the quality of Superior’s shipments was leading to rejections of Superior’s steel by Talcott’s customers. Taleott made no further payments to Superior thereafter.
The trial court concluded that the plaintiff had established its claim to the unpaid purchase price, that the defendants had not sustained their burden
Before we consider the merits of these claims of error, it is well to place the parties’ claims into context. As contracts for the sale of goods, these transactions are governed by the provisions of article 2 of the Uniform Commercial Code. General Statutes § 42a-2-102. “Under article 2, the rights and liabilities of the parties are determined, at least in part, by the extent to which the contract has been executed. The buyer’s acceptance of goods, despite their alleged nonconformity, is a watershed. After acceptance, the buyer must pay for the goods at the contract rate; General Statutes § 42a-2-607 (1); and bears the burden of establishing their nonconformity. General Statutes § 42a-2-607 (4).” Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 563-64, 438 A.2d 959 (1980). Acceptance does not, however, constitute a definitive election to waive all claims and defenses with respect to the accepted goods. If the buyer can demonstrate that he has been damaged by the nonconformity of the goods that he has accepted, he is entitled to recover such damages as he can prove. General Statutes §§ 42a-2-607 (3),
In the present case, the defendants contest neither the sale and delivery of goods pursuant to contracts of sale, nor the fact of the acceptance of the goods by the corporate defendant. The plain
With respect to the defendants’ counterclaim, the defendants bear an even greater evidentiary burden. If they want to rely on the right conferred by § 42a-2-607 to sue for damages flowing from the acceptance of nonconforming goods, they must show not only that the goods were nonconforming, but that their nonconformity has resulted in measurable damages. Such damages include losses “resulting in the ordinary course of events from the seller’s breach”; General Statutes §42a-2-714 (1); or, more typically, damages measured by “the difference . . . between the value of the goods accepted and the value they would have had if they had been as warranted”; General Statutes § 42a-3-714 (2); augmented, in a proper case, by incidental or consequential damages. General Statutes §§42a-2-714 (3), 42a-2-715. Unless the goods delivered were totally worthless, these sections do not authorize recovery by the buyer as damages of the purchase price previously paid to the seller. Compare General Statutes §42a-2-711 (1). Rather, they contemplate that the buyer will prove an offset to the purchase price; see General Statutes § 42a-2-717; although the offset may, because of consequential losses, if proven, exceed the purchase price in amount. The record appears to indicate no financial claim by the defendants other than one for reimbursement of invoices previously paid, and storage and transportation
Absent a claim for damages, the defendants’ counterclaim must rest on whatever right they have to revoke acceptance, pursuant to General Statutes § 42a-2-608. A buyer who justifiably revokes acceptance may recover “so much of the price as has been paid.” General Statutes §42a-2-711 (1). In order to revoke acceptance, however, the buyer must prove more than that the goods were nonconforming. He must show that their “nonconformity substantially impairs [their] value to him” (emphasis added) and that they were initially accepted because the buyer reasonably expected the seller to cure any defects or because the buyer could not immediately discover such defects. General Statutes § 42a-2-608 (1). These are the substantive standards against which the defendants’ counterclaim must be measured and they highlight the burden
The defendants argue that the terms of the contracts of sale were modified to incorporate certain express and implied warranties. There is no doubt that descriptions on invoices ordinarily constitute express warranties that the goods shipped will conform to the description; see General Statutes § 42a-2-313; but in the present case the invoices themselves contained arguably conflicting descrip
Since we find no error in the trial court’s determination that the plaintiff seller had fully complied with its contractual obligations, we need not review the trial court’s findings that the defendants’ notice of alleged defects was not timely. We turn instead to the defendants’ final issue on this appeal, the defendants’ argument that the trial court was in error in finding enforceable the guaranty of the defendants George Roy, Alan Roy and Roy Machinery & Sales, Inc.
The defendants’ position is based upon two propositions which although factually accurate are legally insufficient. The plaintiff’s president testified that the plaintiff, at the time that it asked for a guaranty, was not threatening to take legal action on the bills that were then outstanding since Talcott was not then in default. The plaintiff’s president also testified that the plaintiff did not rely on the guaranty until after the expiration of letters of credit obtained subsequent to the execution of the guaranty.
Even if we were to overlook the modern law of contracts, which makes guaranties enforceable on the basis of reliance; see Restatement (Second), Contracts § 89C (Tent. Ed. 1973) ;
There is no error.
In this opinion the other judges concurred.
General Statutes § 42a-2-607 (3) provides, in relevant part: “Where a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy
“[General Statutes] See. 42a-2-714. buyer’s damages eor breach in regard to accepted goods. (1) Where the buyer has accepted goods and given notification as provided in subsection (3) of section
“(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
“(3) In a proper case any incidental and consequential damages under the next section may also be recovered.”
“[General Statutes] See. 42a-2-608. revocation of acceptance in whole or in part. (1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it (a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or (b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
“(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
“(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”
A buyer who justifiably revokes acceptance may be able to claim, in addition, damages measured by cover; § 42a-2-711; or by losses arising out of nondelivery. § 42a-2-712.
Timeliness of notice is a question of fact. It is generally assumed that the right to revoke must ordinarily be exercised more expeditiously than the right to recover damages. See White & Summers, Uniform Commercial Code (2d Ed.) §§ 8-3, 11-10.
General Statutes § 42a-2-607 (4) provides: “The burden is on the buyer to establish any breach with respect to the goods accepted.”
The defendants’ burden in the particular circumstances of this case is exacerbated by Talcott’s position as middleman between the seller and its own customers. In a sinking market, customers who act with dispatch have the opportunity to reject goods effectively, whether or not the goods are, in whole or in part, conforming. General Statutes § 42a-2-602. Whether such a rejection is wrongful depends upon whether the goods tendered “fail in any respect” to conform to the terms of the contract of sale. General Statutes § 42a-2-601. Inevitable delay in the return of goods up the line makes it likely that the middleman will encounter greater difficulties in attempting a timely rejection and will instead have to rely on his limited right to revoke acceptance, conditioned on his ability to prove a nonconformity that “substantially impairs [the] value [of the goods] to him.” General Statutes § 42a-2-608. A middleman like the present corporate defendant may therefore find itself, under the provisions of article 2, accountable to its seller and to its customers in accordance with ineongruent standards.
In a letter which became plaintiff’s exhibit W in the trial court, addressed to the plaintiff’s president, T. W. Hurwitz, the defendants Hoy Machinery So Sales, Ine., George Boy and Alan Boy, wrote: “In accordance with our telephone conversation of today, we wish to confirm that Boy Machinery So Sales, Inc., will guarantee payment of purchases made by Talcott Tool and Machine Ine., from Superior Wire So Paper Prod. Ltd. In addition, my brother and I will personally guarantee payments to Superior Wire So Paper Prod. Ltd. We hope that this will be of help to you.”
Bestatement (Second), Contracts §890 (Tent. Ed. 1973) provides : “guaranty. A promise to be surety for the performance of a contractual obligation, made to the obligee, is binding if (a) the promise is in writing and signed by the promisor and recites a pur