Krupp Organization v. Belin Communities, Inc.

582 S.W.2d 514, 1979 Tex. App. LEXIS 3596
CourtCourt of Appeals of Texas
DecidedMay 3, 1979
DocketNo. 17311
StatusPublished
Cited by10 cases

This text of 582 S.W.2d 514 (Krupp Organization v. Belin Communities, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krupp Organization v. Belin Communities, Inc., 582 S.W.2d 514, 1979 Tex. App. LEXIS 3596 (Tex. Ct. App. 1979).

Opinion

PEDEN, Justice.

The Krupp Organization appeals from a take-nothing judgment after the non-jury trial of this suit based on breach of contract. Krupp contends that the final contract between the parties provided that El-kins Lake would pay for 250,000 multipart brochures to be made up and mailed by Krupp. Elkins Lake contends that the parties’ agreement consisted of several writings and oral statements between their agents and required it to purchase only 50,000 brochures. Detailed findings of fact and conclusions of law were filed. Krupp alleges 1) that its second quotation (signed on January 21, 1974) became a valid contract, 2) that Elkins Lake breached it, 3) that Krupp is entitled to damages, and 4) that the trial court’s significant findings were based solely on erroneously admitted parol evidence. By cross-point, Elkins Lake maintains Krupp was overpaid and that El-kins Lake is entitled to recover the overpayment. We reverse and render.

Krupp is a California Company specializing in creating, printing and mailing advertising brochures. Elkins Lake is the assumed name of Lakewood Hills, a joint venture that was managed by Belin Communities, Inc.

In September of 1973, Cullum J. Heard, Vice President of Marketing for Elkins Lake, signed a “Quotation from the Krupp Organization” presented by Robert Fein-stock, a Krupp salesman, who initialed it. An additional signature space titled “Must Be Approved by a Krupp Organization Corporate Officer” was not signed. The quotation stated that 250,000 brochures would be printed and mailed at a cost of $250 per thousand, including postage. Designing of the brochures was begun.

A second “Quotation from the Krupp Organization” was signed on January 21,1974, by Heard for Elkins Lake and initialed by Feinstock on the line entitled “Submitted for the Krupp Organization,” but the line marked “Must Be Approved by a Krupp Organization Corporate Officer” was again left blank. Feinstock was not a corporate officer. The second quotation also provided for 250,000 brochures, but the cost was raised to $235 per thousand plus postage because Elkins Lake had added an extra item to the mailing. Along with the signed second quotation, Elkins Lake sent Krupp a check for $15,000 as initial payment, and Krupp began the printing and mailing of 50,000 brochures. Krupp sent an acknowl-edgement dated January 31, stating that 50,000 brochures would be sent out in the course of six mailings, and they would be completed on March 8. Feinstock testified that the decision to print and mail 50,000 pieces, at the rate of 10,000 per week, was made by Krupp, but he said it was made at Heard’s request. On cross examination, he related that the 50,000 figure was picked by Heard and was mutually agreed upon by Heard and himself.

By letter dated May 17, 1974, Heard can-celled further orders by authorizing Fein-stock to sell any unused materials ordered for the Elkins Lake brochures, and Krupp credited $9,614 to Elkins Lake’s account for the unused paper stock, ink, and mailing lists. Krupp alleges that Elkins Lake still owes $17,506.00 plus an additional $605.86 for certain items outside the January 21, 1974 quotation.

Over Krupp’s objections, the trial court admitted parol evidence concerning the agreements of the parties. Heard testified that Feinstock represented that neither of the quotations was intended to be a final agreement and that no quotation would be final and binding until approved by a corporate officer of Krupp. Further, that he and Feinstock agreed that a 50,000 unit sample mailing would be prepared and that if the resulting sales were satisfactory, the remaining 200,000 units would be printed and mailed out. He said Elkins Lake had had no prior business dealings with Krupp, so it was agreed that this sample mailing would allow Elkins Lake to see if Krupp’s direct mail program would be effective.

Appellant’s first ten points of error and its points twelve through sixteen each assert that there is no evidence to support certain of the trial judge’s findings of fact because such findings were based solely on [517]*517parol evidence. We summarize the findings in question:

2) Feinstock (of Krupp) represented to Heard (of Elkins Lake) that the September 17, 1973, quotation (PX 3) would not be binding on Elkins Lake even if Heard signed it unless a Krupp corporate officer approved it;
3) Feinstock represented that he would not submit the quotation to a Krupp officer for approval until its terms had been finally agreed upon;
4) Heard signed the quotation (PX 3) in reliance on Feinstock’s representations;
8) Neither Feinstock nor Heard intended the quotation (PX 3) to be a binding, final agreement;
9) Negotiations continued and on January 21, 1974, Feinstock tendered a second quotation (PX 7) to Heard;
10) Feinstock represented that it would not be binding on Elkins Lake unless approved by a Krupp corporate officer;
11) Feinstock also represented that he would not submit the second quotation to a Krupp officer for approval until the parties had agreed on final terms;
12) Heard signed the second quotation in reliance on such representations from Feinstock;
16) Neither Feinstock nor Heard intended the second quotation to be the final terms of an agreement;
19) Feinstock agreed for Krupp, before January 21, 1974, that the number of brochures would be 50,000;
22) Elkins Lake agreed to pay $235 per 1000 for the 50,000 units to be produced plus an additional amount because of the reduction in quantity from the proposed 250,000 to the agreed 50,000;
23) The parties agreed that part of such additional cost would be billed to El-kins Lake following each of six mailings to be used;
24) The reduction in quantity from 250,-000 to 50,000 was confirmed in writing by Krupp in its “acknowledgement” dated January 31, 1974 (DX 2);
27) The parties agreed that Elkins Lake would order no more brochures unless the agreed 50,000 units produced satisfactory results.

Section 2.201(a) of the Texas Business and Commerce Code states that except as otherwise provided in that section, a contract for the sale of goods for the price of $500 or more is not enforceable unless there is some sufficient writing and signed by the party against whom enforcement is sought. The writing must indicate that a contract of sale has been made by the parties and must specify a quantity. “ ‘Signed’ includes any symbol executed or adopted by a party with a present intention to authenticate a writing.” Sec. 1.201(39). Further, a contract which does not satisfy these requirements but which is valid in other respects is enforceable if the goods are to be specially manufactured and the seller has made a substantial beginning of their manufacture before notice of repudiation is received. Sec. 2.201(c)(1).

Section 2.202 of the Code provides:

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582 S.W.2d 514, 1979 Tex. App. LEXIS 3596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krupp-organization-v-belin-communities-inc-texapp-1979.