Dairyman's Cooperative Creamery Assn. v. Leipold

[186]

Opinion

GARGANO, J.

The Dairyman’s Cooperative Creamery Association, hereafter called the Co-op, brought this action, in common count, to recover the sum of $10,912.50 from appellant, Jerry Leipold; the common count was allegedly predicated on appellant’s oral agreement to purchase 450 bags of dry milk powder from the Co-op.

In defending the action in the court below, appellant, who is a broker, did not deny that he ordered the milk powder from the Co-op. He took the position that he was not obligated to pay for the powder because he had dealt with the Co-op as a broker, not as a principal. He also took the position that the oral agreement was unenforceable under the statute of frauds. This statute is set forth in section 2201 of the California Commercial Code and reads in pertinent part as follows:

“(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 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 paragraph beyond the quantity of goods shown in such writing.

“(2) 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 subdivision (1) against such party únless written notice of objection to its contents is given within 10 days after it is received.

“(3) A contract which does not satisfy the requirements of subdivision (1) but which is valid in other respects is enforceable.

“(c) With respect to goods for which payment has been made and accepted or which have been received and accepted.”

After court trial, the trial judge gave notice of his intended decision as required by rule 232, subdivision (a), of the California Rules of Court. When neither side requested findings of fact and conclusions of law, the court entered judgment in favor of the Co-op for the sum of $10,912.50 plus interest as prayed for in the complaint. Appellant has appealed, challenging the sufficiency of the evidence to support the judgment. His attack centers on the court’s notice of intended decision which reads as follows: “. . .