(1) When the buyer fails to pay the price as it becomes due, the seller may recover, together with any incidental damages under section 4-2-710, the price:
(a) Of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and
(b) Of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.
(2) Where the seller sues for the price, he must hold for the buyer any goods which have been identified to the contract and are still in his control; except, that if resale becomes possible he may resell them at any time prior to the collection of the judgment. The net proceeds of any such resale must be credited to the buyer and payment of the judgment entitles him to any goods not resold.
(3) After the buyer has wrongfully rejected or revoked acceptance of the goods or has failed to make a payment due or has repudiated (section 4-2-610), a seller who is held not entitled to the price under this section shall nevertheless be awarded damages for nonacceptance under section 4-2-708.
Source: L. 65: p. 1338, § 1. C.R.S. 1963: § 155-2-709.
ANNOTATION
Annotator's note. Since § 4-2-709 is similar to repealed § 121-1-63, CRS 53, and CSA, C. 143A, § 63 (uniform sales act), relevant cases construing those provisions have been included in the annotations to this section.
This section provides that where the property in the goods has passed to the buyer who then wrongfully refuses to pay for them, the seller may maintain an action for the price of the goods. Howse v. Crumb, 143 Colo. 90, 352 P.2d 285 (1960).
For the giving notice that seller holds goods as "bailee", see B. J. Shelton Co. v. Muckle Eng'r Co., 121 Colo. 509, 218 P.2d 1057 (1950).
Record showing status of sugar market and seller's inventory during relevant period shows efforts to resell would have been unavailing. Great Western Sugar v. Pennant Prods., 748 P.2d 1359 (Colo. App. 1987).
Award of damages using downside pricing was in effect specific performance of the contracts and not a penalty. Great Western Sugar v. Pennant Prods., 748 P.2d 1359 (Colo. App. 1987).
In an action for the price, the seller is entitled to recovery of the price of "goods accepted." However, the Uniform Commercial Code limits the definition of "goods accepted" to "only goods as to which there has been no justified revocation of acceptance, for such a revocation means that there has been a default by the seller which bars the seller's rights under this section." Thus, a procedurally effective rejection or revocation bars acceptance, and revocation of acceptance, like rejection, allows the buyer to avoid the obligation to pay the price. To the extent the trial court determined otherwise in its summary judgment rulings, it was incorrect. Cissell Mfg. Co. v. Park, 36 P.3d 85 (Colo. App. 2001).
Applied in Guy Martin Buick, Inc. v. Colo. Springs Nat'l Bank, 32 Colo. App. 235, 511 P.2d 912 (1973); Nations Enters., Inc. v. Process Equip. Co., 40 Colo. App. 390, 579 P.2d 655 (1978).