has been made and accepted or which have been received and accepted."
Section 2-202(a) provides that a writing "may be explained or supplemented * * * by course of dealing."
Section 2-204(1) says: "A contract for sale of goods may be made in any manner sufficient to show agreement."
Section 2-204(2) provides that: conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale even though the moment of its making cannot be determined."
Section 2-204(3) provides: "Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy."
Section 2-206(1) says: "Unless the contrary is unanbiguously indicated by the language or circumstances (a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances."
Section 2-206(3) provides that "The beginning of a requested performance can be a reasonable mode of acceptance."
Section 2-208 provides: "Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance accepted without objection shall be relevant to determine the meaning of the agreement or to show a waiver or modification of any term inconsistent with such course of performance."
Review of the foregoing Code provisions shows that the Code attaches great weight to the course of dealing of the parties, even in the absence of a written agreement with respect to every term of the contract. Weighing in the light of the Code the conduct of the parties here, it seems clear that the mode of calculating price set forth in plaintiff's letter of February 9, 1962, although not accepted formally by signature of a copy, was adhered to by both parties during an extensive course of dealing, during which defendant received, accepted, and paid for over $ 800,000 worth of merchandise. This course of dealing must be held applicable and governing with respect to the remaining merchandise which has been received and accepted but not paid for. Judgment should be rendered for plaintiff for the amount due.
There is no genuine dispute of fact with regard to any legally relevant circumstance.
The disputed facts concerning which defendant by discovery and otherwise seeks to inquire extensively relate to matters which are not pertinent, since the law gives effect to the contract recognized by the parties in their course of dealing, regardless of other provisions which the parties might have adopted during their negotiations if they had seen fit to do so.
And now, this 6th day of January, 1965, after argument, for the reasons set forth in the foregoing opinion,
It is ordered, adjudged and finally determined that plaintiff's motion to dismiss defendant's counterclaim be and the same hereby is granted, and that said counterclaim be and the same hereby is dismissed, and that judgment be and it hereby is entered in favor of plaintiff, Associated Hardware Supply Co., a corporation, and against defendant, The Big Wheel Distributing Company, a corporation, in the amount of $ 40,185.62, together with interest and costs.
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