testified that resalability would depend upon finding another
customer whose specifications and needs would coincide with
those imposed by defendant's specifications, which might
entail a waiting interval measured in years. The modification
reference related to:
a. The fact that the impeller in the pumps had been modified
to meet defendant's needs; and
b. The fact that the hose had been cut into lengths required
by defendant's needs and fitted with high pressure couplings.
The sections of hose were salvageable by severing the end
couplings therefrom. Once severed, the couplings were not
The issues before the court for decision are: 1. Whether
there was a sales contract between the parties; 2. Whether
enforcement of the contract is barred by the Statutes of
Fraud; and 3. The amount of plaintiff's damages, if any.
FINDINGS OF FACT
1. Material stated as fact in the foregoing narrative
statement is herein included as additional findings of fact.
2. As of the early evening of July 6, 1972, the parties had
agreed on the specifications and identity of equipment to be
supplied by plaintiff to defendant, on the conditions relating
to a sale of such equipment, on the date and manner of
delivery of such equipment to the Cordova site, and on the
scope and extent of plaintiff's undertaking with relation to
modification and conformance of such equipment to defendant's
specifications. Determination of the price of such equipment
to defendant was the only element of the sale agreement then
left for later determination.
3. In all of its communication with plaintiff, defendant
stressed only the factors of its requirements and that the
July 10 delivery date be met. There is no evidence that there
was ever any definitive discussion related to the anticipated
cost of the high pressure hose. The testimony of all witnesses
is consistent. There is nothing to indicate any inquiry by
defendant at any time as to the anticipated cost of the total
package. An estimated price was stated by plaintiff with
reference to the Hale pumps. When advised that those pumps
were not available, Patton requested that other pumps be
sought. When advised as to the equipment which Stang could
supply, Patton is not shown to have made any inquiry as to the
cost of the Stang pumps or the cost of the hose. The point on
which all witnesses agree is that Patton, when advised that
the Stang package was obtainable, supplied Mr. Alter with an
order number and directed that the equipment be ordered for
July 10 delivery. If Patton's testimony that no price estimate
was mentioned on the evening of July 6 be accepted, that
testimony, in conjunction with his further testimony that he
then directed Mr. Alter to order shipment immediately, makes
necessary the inference that defendant was stressing the
condition of delivery by July 10, regardless of cost. It must
be inferred from all of the evidence that defendant did intend
to enter into a purchase agreement, and did enter into a
purchase agreement for the equipment, with the element of
price open for later determination.
4. A preponderance of the evidence requires the inference,
and the court finds that at that time Mr. Patton was advised
orally as to an anticipated price of as much as $200,000, and
that, being so advised, he supplied the order number and
instructed plaintiff to order the equipment for delivery on or
before July 10, 1972.
5. The testimony of defendant's agents, Patton and King,
requires the finding that defendant admits that a sales
agreement did exist between the parties from and after the
aforementioned conversation between Alter and Patton on July
6. Plaintiff had no notice of any kind that its agreement
was to be subject to approval by G.E., and plaintiff
acted in all respects in good faith in relying upon that
7. Plaintiff's acts were in all respects in conformity with
the agreement between the parties. The equipment ordered by it
thereunder fully complied with the specifications and
requirements of defendant as communicated to plaintiff by
Patton and King.
8. Defendant did cancel and repudiate that agreement; and
there is no factual basis to justify that action.
9. Prior to cancellation of the agreement, the equipment
had been substantially modified to conform to defendant's
specifications, and as so modified it was not then readily
resalable to buyers other than the defendant.
10. Plaintiff sustained actual special damages in the amount
of $27,740.15, which were incidental to defendant's
cancellation of the agreement.