Question

Bothe Woody Woods and Luther Lumbers are merchants of timber. woods calls lumber and leaves a message saying that he wants to buy 100 trunks of pine woods for delivery by december 15, 2017. Lumber immediately takes a piece of his stationery with letterhead and fexes woods stating 'Agreed that i will send you 100 trunks of pine to be received by december 15, 2017. Before december 15, 2017, lumber ships 100 trunks of oak wood to woods since in the past wood has accepted oak as a subsititute of pine. One december 13, 2017 woods receives the shipments and rejects shimpment stating "i asked for pine not for oak". lumber receives the shipment back and replaces it with 100 trunks of pine shipped to woods and receivedby woods on december 16, 2017. woods again rejects stating " you failed to cure within the delivery time provided by the contract time which was december 15,2017 so you may not cure. Luther sells the pine to another buyer for $20000 which is $5000 less than he would have gotten from woods and he sues woods for $25,000. woods offers following defenses:

answer the following questions separately with appropriate explanation

a) there was never a contract because of the stature of frauds. (b) there never was a contract because luther never acceped the offer because he shipped the wrong product. (c) there never was contract because there never was an agreed upon the price. (d) even if there was a contract, luther lost the right to cure because the time within which to perform under the contract had passed. (e) luther cannot recover anything because he alread sold the goods to someone else.

Answer 1

a) there was never a contract because of the statute of frauds.

The statute of frauds cannot be invoked here as a defense point by Woods --- as till the point ,Luther faxed the following message:

"agreed that I will send you 100 trunks of pine to be received by December 15, 2017" in reply to Woods' message

there is every element of a valid & enforceable contract--namely offer & acceptance , may be in a reverse order. Also they had such dealings in the past.

(b) there never was a contract because Luther never acceped the offer because he shipped the wrong product.

Yes. This is a valid defense available to Woods.

Woods would have been under the impression that he will receive only pine as agreed by Luther in his fax.

Shipping the wrong product raises doubts ,if Luther has understood the subject-matter of the contract.

(c) there never was contract because there never was an agreed upon the price.

No.This cannot be used to Wood's defense.

Both being in the timber business, it cannot be expected that he has left the slip at Luthers' for pine to be delivered by Dec.15, without any knowledge about the prices.

d) even if there was a contract, Luther lost the right to cure because the time within which to perform under the contract had passed.

Yes.This definitely comes to Wood's defense. Luther should have duly confirmed with Woods before shipping the right product , as there is time constraint ,in the original message left by Eoods.

(e) Luther cannot recover anything because he alread sold the goods to someone else.

Even though this will not help Woods to his defense, Luther cannot , in anyway, recover anything from Woods