Hinson-Barr, Inc. v. PINCKARD, III

356 S.E.2d 115, 292 S.C. 267, 4 U.C.C. Rep. Serv. 2d (West) 36, 1987 S.C. LEXIS 256

• Court: Supreme Court of South Carolina
• Decided: May 4, 1987
• Docket: 22717
• Status: Published

Opinions

Harwell, Justice:

This appeal is from an order granting respondent (Seller) summary judgment in its action for breach of contract against appellants (Buyer). We reverse and remand.

The following facts are undisputed. Buyer and Seller entered into a verbal agreement for the sale of certain restaurant equipment at which time they discussed an approximate price. An invoice was delivered with the equipment. Buyer, however, did not read the invoice when he accepted the goods and did not contest the invoice price until more than ninety days after delivery. Seller then commenced this suit to recover the invoice price for the equipment.

The trial judge, relying on S. C. Code Ann. § 36-2-201(2) (1976), granted summary judgment on the ground that Buyer was liable for the invoice price because he did not timely object after accepting the goods. Section 36-2-201(2) provides:

Between merchants if within a reasonable time a writing in confirmation of the contract 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) [statute of frauds] against such party unless written notice of objection to its contents is given within ten days after it is received.

A confirming writing that satisfies this section of the Uniform Commercial Code does not prove the terms of the contract but merely eliminates a statute of frauds defense. The recipient’s failure to object to the confirming memorandum does not render its terms incontrovertible. The party seeking to enforce the contract still has the burden of proving the contract terms. See, e.g., Lorenz Supply Co. v. American Standard, Inc., 419 Mich. 610, 358 N. W. (2d) 845 (1984); In Re Marlene Industries Corp. v. Carnac Textiles, Inc., 45 N. Y. (2d) 327,380 N. E. (2d) 239,408 N. Y. S. (2d) 410 (1978); Azevedo v. Minister, 86 Nev. 576, 471 P. (2d) 661 (1970); Hurricane Steel Industries Co. v. Maurice Pincoffs Company, 464 S. W. (2d) 387 (Tex. Ct. App. 1971); Official Comment 3 to UCC § 2-201; J. White & R. Summers Uniform Commercial Code § 2-3 (2d ed. 1980).

The trial judge erred in finding that the invoice price was binding on Buyer because of Buyer’s failure to object under §36-2-201(2). Because Buyer contested the contract price, it was a material fact in issue. Summary-judgment was therefore improper. See Jenkins Realty v. Hilton, 278 S. C. 624, 300 S. E. (2d) 594 (1983).

Seller contends that alternatively the trial judge’s decision should be affirmed under S. C. Code Ann. § 36-2-207(2) (1976). This section provides:

The additional terms [of a written confirmation] are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

It is clear, however, that the several thousand dollar difference between the invoice price and the price that was originally quoted “materially alters” the contract. Seller admits that “the invoice price was notably higher than the original estimate given over the telephone.” This material alteration in price therefore does not become a part of the contract. S. C. Code Ann. § 36-2-207(2)(b).

We need not address appellants’ remaining exceptions. The judgment of the lower court is reversed and the case is remanded.

Reversed and remanded.

Gregory and Finney, JJ., concur. Chandler, J., not participating. Ness, C. J., dissents.