XCEL Mold & Machine, Inc. v. Devault Industries, L.L.C.

2008 Ohio 2693, 888 N.E.2d 1159, 146 Ohio Misc. 2d 32
CourtCanton Municipal Court
DecidedApril 11, 2008
DocketNo. 2007 CVF 10304
StatusPublished

This text of 2008 Ohio 2693 (XCEL Mold & Machine, Inc. v. Devault Industries, L.L.C.) is published on Counsel Stack Legal Research, covering Canton Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
XCEL Mold & Machine, Inc. v. Devault Industries, L.L.C., 2008 Ohio 2693, 888 N.E.2d 1159, 146 Ohio Misc. 2d 32 (Ohio Super. Ct. 2008).

Opinion

Belden, Judge.

{¶ 1} This lawsuit was brought by XCEL Mold and Machine, Inc. (“XCEL”) for breach of contract against DeVault Industries, L.L.C. (“DeVault”). XCEL seeks $9,000 for the manufacture and delivery of 60 trigger-assembly units for custom-built shotguns. DeVault argues in defense that the agreed-upon price for the 60 units was really $1,080, not $9,000, and that DeVault had already paid for the units. In fact, DeVault asserts, when XCEL negotiated the $1,080 check that was marked “payment in full,” it completed an accord and satisfaction of the debt it claims in this case.

2} Many of the facts are not in dispute, although some important ones are. Sometime in the early months of 2007 Dennis DeVault (defendant’s president) met with Bob Cain (plaintiffs president), Bob Johnson( plaintiffs vice-president), and Tom Marcelli (the department head of plaintiffs wire EDM department). DeVault was looking to outsource the manufacturing of trigger-assembly units for its shotguns. XCEL is a company that specializes in “wire cutting” of steel, a process that can be used to make such units. Mr. DeVault provided diagrams of what DeVault wanted; XCEL used the diagrams to determine that it would take about 7.5 hours of machine time to wire out two units. The parties agreed that [34]*34XCEL would produce a small number of units in a test run and that DeVault would pay for them. This would give XCEL a better idea of how much it would cost it to manufacture a greater quantity of the units.

{¶ 3} XCEL made six trigger-assembly units, and also prototypes of several other parts. XCEL sent an invoice to DeVault for $1,750. DeVault paid the invoice and wanted XCEL to manufacture more trigger-assembly units.

{¶ 4} DeVault sent a purchase order (“P.O. No. 27”) to XCEL on April 19, 2007. The description on P.O. No. 27 reads: “Wire burn trigger housings as per drawing. Parts were done before material is 1045 and should be enough material to provide 60 units.” The quantity of products to be manufactured, however, is 20 units, and the price is $18 per unit. Mr. DeVault testified that this price was derived from dividing the $1,750 total of the first, trial run, order by total number of pieces received in that order, 97 pieces. He acknowledges that only six of those pieces were trigger housings; the other 91 pieces were smaller in size.

{¶ 5} XCEL received P.O. No. 27, but what happened next is one of the facts in dispute in this case. Mr. Cain testified that he called Mr. DeVault on the phone within a few days and told him that XCEL could not manufacture the units for a price of $18 each. Mr. Cain says that Mr. DeVault in so many words told him to ignore the $18 figure; he had to put something on the invoice but it was not controlling. According to Mr. Cain, Mr. DeVault told him to go ahead and manufacture the units and that they would figure out a fair price later.

{¶ 6} Mr. DeVault’s recollection of this phone call differs substantially from Mr. Cain’s recollection. Mr. DeVault says that nothing was said about price and that the only topic of discussion concerned quantity. He said that Mr. Cain told him that he needed to manufacture more than 20 units to offset the set-up costs for manufacturing the item. Mr. DeVault says that he told Mr. Cain to go ahead and make more units with the materials DeVault provided.

{¶ 7} Sometime after the units had been made, Bob Johnson called and asked if DeVault was going to make XCEL stick to the $18 per unit price. Mr. DeVault says that he told Mr. Johnson that yes, he was going to hold XCEL to the $18 price. (Mr. Johnson did not mention this phone conversation in his testimony.)

{¶ 8} Mr. DeVault said that he received a phone call from Bruce Cain after the phone call from Bob Johnson. The message that Mr. Cain delivered was that $18 per unit was not enough. Mr. DeVault says that he did not agree to a higher price. This took place after the units had been delivered to DeVault. They came in two shipments, one May 2, 2007, and the other June 11, 2007.

{¶ 9} The next thing that DeVault received was a bill for $9,000, dated June 25, 2007. It is unclear what direct communications took place after DeVault received [35]*35this bill, and on October 19, 2007, DeVault mailed a check for $1,080. The check states in the lower left-hand corner: “pymt in full PO# 27 60 pcs@18.00 ea.”

{¶ 10} Again there is disagreement as to what happened next. Bruce Cain testified that after receiving the check, he attempted to call Dennis DeVault but was not able to reach him on the phone. He states that he talked to an employee who was not authorized to negotiate the matter.

{¶ 11} Dennis DeVault, on the other hand, says that Mr. Cain was able to get hold of him. According to Mr. DeVault, Mr. Cain called him “crazy” and said that he was sending the check back.

{¶ 12} What is undisputed is that XCEL did not send the check back. XCEL negotiated the check and deposited the proceeds in its bank account. On December 20, 2007, however, XCEL mailed its own check for $1,080 to DeVault. In the cover letter, Mr. Cain states: “We do not and will not accept your check number 2746 as payment in full for your purchase order number 27 and our invoice number 34937 dated June 25, 2007.” This lawsuit followed.

Was There a Binding Contract?

{¶ 13} XCEL argues that P.O. No. 27 is not legally enforceable, particularly the rate of $18 per unit. The plaintiff states that P.O. No. 27 is nothing but a mere proposal, that it never accepted the $18 per unit price, and that the actual agreement between the parties was a verbal agreement that XCEL would manufacture and deliver 60 units for $9,000.

{¶ 14} DeVault, of course, begs to differ. DeVault relies upon the Uniform Commercial Code’s (“UCC”) version of the Statute of Frauds, R.C. 1302.04, which states:

(A) 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 division beyond the quantity of goods shown in such writing.
(B) 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 division (A) of this section against such party unless written notice of objection to its contents is given within ten days after it is received.

[36]*36{¶ 15} The defendant thus is the party that asserts that there is a binding written contract, P.O. No. 27. The plaintiff is the party that claims that there is no binding written contract, but that there is a binding oral contract.

(¶ 16} Who is correct? There is no dispute that this is a business deal between “merchants,” as defined by the UCC.1 “Generally, the submission of a purchase order is viewed as being an offer which may then be accepted or rejected by the seller.”2 Under division (B) of R.C. 1302.04, the plaintiff had ten days to give written notice of objection.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 Ohio 2693, 888 N.E.2d 1159, 146 Ohio Misc. 2d 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xcel-mold-machine-inc-v-devault-industries-llc-ohmunictcanton-2008.