We therefore conclude that plaintiff can not recover under the Uniform Commercial Code.
However, this does not mean that judgment for defendant Chamberlain must now be given.
There are questions of fact regarding the merits of plaintiff's claim on the contract, and with respect to the alleged defective merchandise and delays in delivery. Likewise there are questions of fact regarding the intent of the parties to the liquidation agreements. It may well be that plaintiff is entitled to recover from Chamberlain by reason of the assumption provisions of those agreements. Moreover, in view of the current trend towards holding successor corporations carrying on the same business liable, even in absence of privity of contract, on the basis that qui sentit commodum sentire debet et onus, plaintiff should be given the opportunity to advance any other grounds of liability apart from the Uniform Commercial Code. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 551, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964). The liquidation contract here accords Chamberlain the right to "Keystone's good will as a going concern" and the right to use Keystone's name (Keystone being required to change its name).
Accordingly, the motion will be denied except with respect to Count II of the complaint, which invokes the Uniform Commercial Code.
And now, this 4th day of October, 1968, upon consideration of defendants' motion for summary judgment, and of briefs in support thereof and in opposition thereto, and the Court being of opinion that plaintiff is not entitled to recover under the Uniform Commercial Code, but that other issues of fact remain for disposition,
It is ordered that judgment be and it hereby is rendered against plaintiff and for defendants upon Count II of the amended complaint;
And it is further ordered that defendant Chamberlain's motion for summary judgment be and it hereby is in other respects denied, and that further proceedings in the cause go forward in due course.
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