Franklin v. Demico, Inc.

347 S.E.2d 718, 179 Ga. App. 775, 2 U.C.C. Rep. Serv. 2d (West) 909, 1986 Ga. App. LEXIS 2010
CourtCourt of Appeals of Georgia
DecidedJuly 15, 1986
Docket72233
StatusPublished
Cited by9 cases

This text of 347 S.E.2d 718 (Franklin v. Demico, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin v. Demico, Inc., 347 S.E.2d 718, 179 Ga. App. 775, 2 U.C.C. Rep. Serv. 2d (West) 909, 1986 Ga. App. LEXIS 2010 (Ga. Ct. App. 1986).

Opinions

Deen, Presiding Judge.

Defendant Franklin appeals from a bench trial judgment for plaintiff Demico. Enumerated as error are Demico’s failure to meet the burden of proof as to damages and the refusal of the trial court to direct a verdict for Franklin predicated on the same gap in the establishment of a prima facie case. Where there is a bench trial, technically a motion for directed verdict does not lie. Instead, it is treated as a motion for involuntary dismissal under OCGA § 9-11-41. Kennery v. Mosteller, 133 Ga. App. 879, 880 (212 SE2d 447) (1975).

Demico filed suit on an account. However, as the factual situation unfolded it became apparent that the action was somewhat more complex than a mere open account and involved breach of contract. Demico was in the business of providing customized electronic components to its customers, to whom they were proprietary. Python Corporation was producing energy-saving devices. Demico entered into an agreement whereby it would furnish Python with electronic circuit boards (PA-2’s and PAC’s) to meet certain specifications. Since Python was a new corporation of uncertain credit ability, Franklin, its president, agreed to guarantee payment. The orders for the circuit boards were modified by mutual agreement and as finalized were basically for 1,000 PA-2 boards at $44 each and 1,000 PAC boards at $36 each. Delivery of the boards was scheduled over a year’s period in quantities of 50 to 100 per month.

The agreement was documented in letters, purchase orders, conversations, and the “Demico Blanket Order Policy.” As stated therein, it was based on the principle that a blanket order for a large quantity by a customer permitted Demico to order parts in quantity at a fixed schedule and thereby save substantially, permitting it to offer its products at lower prices. Increases and decreases in volume and scheduling which naturally affected the prices charged were handled by two provisions in the blanket order policy. Under the first [776]*776provision, if the item was developed using off-the-shelf components (readily available from vendors), increases in volume would take effect 90 days from a replacement purchase order. On the other hand, orders could be lowered or stopped by giving 90 days’ written notice and receiving the scheduled shipment for 90 days, in which case there would be a “bill back” at the time of the change to reflect the higher quantity price for the aggregate per quote. Presumably, for example, if an item offered at $50 for an order of 1,000 was then reduced to 500 items at which the price was $60 apiece, then the customer would be “billed back” the difference of $10 per item for the total amount of items under the revised order.

Under the second provision, where special parts were utilized which were not available on the open market, “a clause shall be incorporated to provide options to make program changes, a scheduled slowdown, and a scheduled shutdown. The contract shall provide that our client is liable for proprietary parts that are in process by our vendors.” Python and Franklin agreed to the policy.

Almost immediately Python began to experience financial difficulties and after the initial shipments did not make timely payments. Python paid $10,025 to Demico for boards shipped to it. Three invoices were not paid, although promises to pay were made, and these three invoices formed the basis for the complaint. At trial Python admitted owing the one for $2,202.48, which represented 50 shipped PA-2 boards.

The dispute, then, revolves around the other two invoices, one for $4,400 for the balance of the PA-2 order not shipped and one for $21,420 for the balance of the PAC’s ordered but not shipped. These invoices represent what Demico’s president called “billbacks” and are described as constituting Demico’s loss resulting from Python’s failure to honor its full order. Python notified Demico to cease production of the PA-2’s on December 7, 1983, triggering the $4,400 invoice. Python never advised Demico to stop buying parts for and working on the PAC’s, but Demico did so because of the slow payments; Python never sought shipment of those portions of its order. After Python ceased operating, Demico sent an invoice in connection with the 850 PAC’s remaining on that order. The amount billed was $21,420, based on a calculation of 70% of the original price of $36 each for the 850 PAC units. The invoice contained an explanation that 62 units were “in work,” 788 units had “parts in house,” and the sum was for “parts and work in process, overhead and profit.”

At trial, Demico was required to prove its damages with reasonable certainty. Crosswell v. Arten Constr. Co., 152 Ga. App. 162, 166 (3) (262 SE2d 522) (1979). We must determine whether this was accomplished.

1. Of first priority is that we ascertain the correct measure of [777]*777damages applicable to this case. Since the sale of goods was involved, we turn to the provisions of the UCC found in OCGA Title 11, especially OCGA §§ 11-2-703 through 710, setting out seller’s remedies for buyer’s breach of a sales transaction.

Demico’s action by its very nature is not one for the price under OCGA § 11-2-709. Thus, OCGA § 11-2-708 would control. Because the items involved were unique so that no market existed, OCGA § 11-2-708 (2) rather than (1) would be applicable. See Copymate Marketing v. Modern Merchandising, 34 Wash. App. 300 (660 P2d 332) (1983); Bead Chain Mfg. Co. v. Saxton Prods., 183 Conn. 266 (439 A2d 314) (1981). If the measure of damages under UCC § 2-708 (1) is inadequate to put the seller in as good a position as if the contract had been fully performed, then the damages are as prescribed by (2). TCP Indus. v. Uniroyal, 661 F2d 542 (6th Cir. 1981); Coast Trading Co. v. Parmac, Inc., 21 Wash. App. 896 (587 P2d 1071) (1978). The damages included in OCGA § 11-2-708 (2) are: “the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in [OCGA § 11-2-710], due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.” OCGA § 11-2-710 defines “incidental damages” as: “any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care, and custody of goods after the buyer’s breach, in connection with return or resale of the goods or otherwise resulting from the breach.”

OCGA § 11-2-708 (2) is designed to encompass the situation, as here, where the seller learns of the buyer’s breach while still engaged in manufacturing the goods.

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Franklin v. Demico, Inc.
347 S.E.2d 718 (Court of Appeals of Georgia, 1986)

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347 S.E.2d 718, 179 Ga. App. 775, 2 U.C.C. Rep. Serv. 2d (West) 909, 1986 Ga. App. LEXIS 2010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-demico-inc-gactapp-1986.