O.C.G.A. § 11-2-201 — Jem Patents, Inc

v. Frost, 147 Ga. App. 839, 250 S.E.2d 547, 1978 Ga. App. LEXIS 2972 (1978). Complete signature of seller is not necessary to constitute authentication. Troutt v. Nash AMC/Jeep, Inc., 157 Ga. App. 399, 278 S.E.2d 54, 1981 Ga. App. LEXIS 1838 (1981). 58 Where the seller does not sign the sales contract, that fact would not render its provisions unenforceable against the buyer as there is no question that the buyer signed it and that it in fact constitutes the agreement under which the sale was made. Frick Forest Prods., Inc. v. International Hardwoods, Inc., 161 Ga. App. 359, 288 S.E.2d 625, 1982 Ga. App. LEXIS 1878 (1982). Purchase orders of the buyer which were not signed by any employee or authorized agent of the manufacturer did not satisfy the requirements of O.C.G.A. § 11-2-201(1). Entertainment Sales Co. v. SNK, Inc., 232 Ga. App. 669, 502 S.E.2d 263, 1998 Ga. App. LEXIS 641 (1998). Signature may be printed and may be on any part of document, including billhead or letterhead. Troutt v. Nash AMC/Jeep, Inc., 157 Ga. App. 399, 278 S.E.2d 54, 1981 Ga. App. LEXIS 1838 (1981). A writing is “signed” if it bears any authentication which identiﬁes the party to be charged on the contract. Roboserve, Ltd. v. Tom’s Foods, Inc., 940 F.2d 1441, 1991 U.S. App. LEXIS 20568 (11th Cir. 1991). Writing insufficient to evidence contract for the sale of goods. See Alice v. Robett Mfg. Co., 328 F. Supp. 1377, 1970 U.S. Dist. LEXIS 9588 (N.D. Ga. 1970), aff’d, 445 F.2d 316, 1971 U.S. App. LEXIS 9809 (5th Cir. 1971). Letter stating buyer’s willingness to purchase seller’s output where seller had not begun producing goods. — Letter outlining nature of buyer’s operations, seller’s efforts and expertise, and stating that buyer had informed seller of buyer’s being “willing and able to purchase” all seller’s output at a cost no greater than buyer’s own cost of production is, as a matter of law, insufficient as a writing under O.C.G.A. § 11-2-201, because at time the letter was written, seller had taken no action to begin producing goods referred to in the letter. Accordingly, no contract could have existed at the time the letter was written. Maderas Tropicales v. Southern Crate & Veneer Co., 588 F.2d 971, 1979 U.S. App. LEXIS 17162 (5th Cir. 1979). Signed check used as down payment on store, with notation “For 11-2-201 Binder on Store,” meets all requirements of a writing sufficient to indicate that contract for sale was made between parties. The check does not prove a contract, but would authorize introduction of oral evidence toward that end. Jinright v. Russell, 123 Ga. App. 706, 182 S.E.2d 328, 1971 Ga. App. LEXIS 1354 (1971). Merchants’ Conﬁrmations One party signing written conﬁrmation. — O.C.G.A. § 11-2-201 allows formation of enforceable contract even though only one party signs written conﬁrmation. Edwards v. Wilbur-Ellis Co., 379 F. Supp. 1404, 1974 U.S. Dist. LEXIS 7352 (N.D. Ga. 1974). Effect of failure to answer written conﬁrmation within 10 days of receipt. — Between merchants, failure to answer written conﬁrmation of contract within 10 days of receipt is tantamount to a writing under O.C.G.A. § 11-2-201(2) and is sufficient against both parties under O.C.G.A. § 11-2-201(1). The only effect, however, is to take away from the party who fails to answer the defense of the statute of frauds; burden of persuading trier of fact that a contract was in fact made orally prior to written conﬁrmation is unaffected. Edwards v. Wilbur-Ellis Co., 379 F. Supp. 1404, 1974 U.S. Dist. LEXIS 7352 (N.D. Ga. 1974). Written conﬁrmation between merchants enforceable only as to quantity speciﬁed. — Between merchants, requirement of a writing is satisﬁed by a writing in conﬁrmation of contract which is received within a reasonable time by party against whom enforcement is sought and which is sufficient to bind the sender, but is enforceable only with respect to quantity of goods shown in the writing. Maderas Tropicales v. Southern Crate & Veneer Co., 588 F.2d 971, 1979 U.S. App. LEXIS 17162 (5th Cir. 1979). Conﬁrmation order of broker sufficient writing. — As there was evidence from which it could be inferred that a peanut commodities broker’s conﬁrmation order was a writing that was signed by both parties to the transaction, through the broker as their agent, and that the conﬁrmation was signed by the sender’s agent such that it was sufficient against 59 11-2-201 Merchants’ Conﬁrmations (Cont’d) the sender, the seller could not rely on a defense under the Statute of Frauds to the buyer’s claims. Brooks Peanut Co. v. Great S. Peanut, LLC, 322 Ga. App. 801, 746 S.E.2d 272, 2013 Ga. App. LEXIS 618 (2013). Invoices held to be written conﬁrmation of the contract between merchants within the meaning of O.C.G.A. § 11-2-201(2). Dalesso v. Reliable-Triple Cee of N. Jersey, Inc., 167 Ga. App. 372, 306 S.E.2d 415, 1983 Ga. App. LEXIS 2496 (1983). Where the sale of goods involves two parties who are merchants, the invoices for the sale constitute written conﬁrmation of the agreement; in addition, buyer’s acceptance of the delivered goods takes the agreement out of the statute of frauds due to partial performance. Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 328 S.E.2d 564, 1985 Ga. App. LEXIS 1721 (1985). Italian companies that sold goods to a Georgia corporation were not required to obtain a certiﬁcate of authority from the State of Georgia prior to doing business in Georgia, and Georgia courts had jurisdiction over actions which the Italian companies ﬁled against the Georgia corporation after they delivered goods, submitted invoices for payment, but were not fully paid. Imex Int’l v. Wires Eng’g, 261 Ga. App. 329, 583 S.E.2d 117, 2003 Ga. App. LEXIS 565 (2003), cert. denied, No. S03C1410, 2003 Ga. LEXIS 802 (Ga. Sept. 22, 2003), cert. denied, No. S03C1408, 2003 Ga. LEXIS 803 (Ga. Sept. 22, 2003). Farming corporation as “merchant.” — Evidence supported a ﬁnding that defendant farming corporation was a “merchant” bound by an oral agreement to sell 5,000 bushels of soybeans, which agreement was conﬁrmed in writing to which the corporation made no response. Thunderbird Farms, Inc. v. Abney, 178 Ga. App. 335, 343 S.E.2d 127, 1986 Ga. App. LEXIS 1672 (1986). Preprinted “limited warranty” language. — Under O.C.G.A. § 13-2-2(7), preprinted “limited warranty” language on the back of a conﬁrmation had no effect because it directly contradicted the full warranty language that was typed on the front of the preprinted conﬁrmation form; the court erred when it relied on this warranty to bar claims for lost proﬁts or other special damages. Authentic Architectural Millworks, Inc. v. SCM Group USA, Inc., 262 Ga. App. 826, 586 S.E.2d 726, 2003 Ga. App. LEXIS 1041 (2003). “Merchants” as including farmers who orally “book” crops. — Construing “merchants” in O.C.G.A. § 11-2-104(1) as not excluding as a matter of law farmers who orally “book” crops such as soybeans for sale protects them equally as well as the buyer. If the market price declines after the booking, they are assured of the higher booking price; the buyer cannot renege as O.C.G.A. § 11-2-201 would apply. Goldkist, Inc. v. Brownlee, 182 Ga. App. 287, 355 S.E.2d 773, 1987 Ga. App. LEXIS 1680 (1987). Deposition testimony of merchant’s representative sufficient to form oral agreement. — When a car dealer admitted that a contract existed for the sale of a speciﬁc quantity of goods, namely, one vehicle, via the dealer’s representative’s deposition, but on different terms and conditions than those alleged by the car’s potential buyer, the oral agreement between the parties was enforceable under the exception to the statute of frauds set forth in O.C.G.A. § 11-2-201(3)(b). Jones v. Baran Co., LLC, 290 Ga. App. 578, 660 S.E.2d 420, 2008 Ga. App. LEXIS 378 (2008). Objection requirements of O.C.G.A. §§ 11-2-201(2), 11-2-202, and 11-2-207 applied to work orders issued by a home improvement store to a contractor for the purchase of carpeting because the contractor’s installation service was incidental to the purchase of carpeting by the store’s customers. On the other hand, change orders that dealt with services that the contractor was asked to provide over and above the initial installation of the carpeting were not subject to the requirements of the Uniform Commercial Code. Ricciardelli v. Home Depot U.S.A., Inc., 679 F. Supp. 2d 192, 2009 U.S. Dist. LEXIS 123344 (D. Mass. 2009). Actions When insufficient contract enforceable. — A contract which is within statute of frauds at time of ﬁling petition or cross 60 action can become enforceable by admissions in the case itself by party charged, but not by admissions made outside the case prior to ﬁling of petition or cross action. Garrison v. Piatt, 113 Ga. App. 94, 147 S.E.2d 374, 1966 Ga. App. LEXIS 981 (1966). A contract which is otherwise insufficient may still be enforceable if party against whom enforcement is sought admits by pleading or testimony that a contract of sale was in fact made. Jackson v. Meadows, 153 Ga. App. 1, 264 S.E.2d 503, 1980 Ga. App. LEXIS 1650 (1980). Failure to object to goods constituted acceptance and formed contract. — Under the merchant rule in O.C.G.A. § 11-2-201(2), a hospital’s failure to object in writing to a medical supplier’s invoice for pumps within ten days of receipt constituted the hospital’s acceptance of the goods and formed an enforceable contract, even though the hospital’s purchase order noted that the purchase was contingent on approval by the hospital’s board of directors. Ardus Med., Inc. v. Emanuel County Hosp. Auth., 558 F. Supp. 2d 1301, 2008 U.S. Dist. LEXIS 37339 (S.D. Ga. 2008). Party admitting contract may not claim beneﬁt of statute of frauds. — Party charged cannot admit fact of parol contract and at same time claim beneﬁt of statute of frauds. Garrison v. Piatt, 113 Ga. App. 94, 147 S.E.2d 374, 1966 Ga. App. LEXIS 981 (1966). O.C.G.A. § 11-2-201(3)(b) was designed to prevent the statute of frauds itself from becoming an aid to fraud, by prohibiting one claiming the beneﬁt of the statute who admits in the case the oral contract sued upon. Garrison v. Piatt, 113 Ga. App. 94, 147 S.E.2d 374, 1966 Ga. App. LEXIS 981 (1966). An oral agreement for the sale of a horse for $35,000 was enforceable under O.C.G.A. § 11-2-201(3)(b); the seller admitted that a contract was made for the sale of one horse. Rowland v. Scarborough Farms, LLC, 285 Ga. App. 831, 648 S.E.2d 151, 2007 Ga. App. LEXIS 651 (2007). Petition for enforcement of contract otherwise valid not demurrable. — Because it is clearly the intent of the legislature that enforceability of contract, 11-2-201 which on its face may be within statute of frauds, is tested by answer, testimony, or plea of party charged, and not merely by allegations in the petition or cross action brought to enforce the contract, it follows that a petition upon such a contract which is valid in other respects is not demurrable because it shows on its face that it is within the statute of frauds. Garrison v. Piatt, 113 Ga. App. 94, 147 S.E.2d 374, 1966 Ga. App. LEXIS 981 (1966). Agreement found outside of statute of frauds due to partial performance. See Dan Gurney Indus., Inc. v. Southeastern Wheels, Inc., 168 Ga. App. 504, 308 S.E.2d 637, 1983 Ga. App. LEXIS 2829 (1983). Parol defense. — In action on account by seller, O.C.G.A. § 11-2-201 does not prohibit setting up by parol evidence a defense based upon term of contract of sale as to when payments on account become due. Giant Peanut Co. v. Carolina Chems., Inc., 129 Ga. App. 718, 200 S.E.2d 918, 1973 Ga. App. LEXIS 1123 (1973). Secured transactions. — While it appeared that O.C.G.A. § 9-3-24, rather than O.C.G.A. § 11-2-725, would most likely apply to defendant collection attorney’s state court deﬁciency action against plaintiff consumer, and it was not for the federal court to say what the Georgia courts would hold, the uncertainty meant there was no intentional unfair conduct and the consumer’s Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., claim was dismissed; language in O.C.G.A. § 11-2-201 excluded “secured transactions” from § 11-2-201. Almand v. Reynolds & Robin, P.C., 485 F. Supp. 2d 1361, 2007 U.S. Dist. LEXIS 31907 (M.D. Ga. 2007). Summary judgment. — Lender and attorney were properly granted summary judgment against a home buyer’s breach of contract, fraud, and conspiracy claims, as: (1) there was no evidence of a written purchase agreement for the home and the land it was placed on; and (2) a simple reading of the contract by the buyer would have protected against any alleged misrepresentations; moreover, to the extent that the home buyer’s claim of a conspiracy depended upon the viability of the fraud and breach of contract claims, it also 61 Actions (Cont’d) failed. Parrish v. Jackson W. Jones, P.C., 278 Ga. App. 645, 629 S.E.2d 468, 2006 Ga. App. LEXIS 325 (2006). Because an oral contract concerning the disposal of car skeletons on property operated as a junkyard did not violate 11-2-201 O.C.G.A. §§ 11-2-201 and 11-2-725, the trial court erred in granting summary judgment against a seller on his counterclaim for fraud, due to the option holder’s repudiation of the contract in ﬁling for speciﬁc performance. Henry v. Blankenship, 284 Ga. App. 578, 644 S.E.2d 419, 2007 Ga. App. LEXIS 251 (2007).