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filed: May 2, 1988.


Appeal from the Order entered May 22, 1987 in the Court of Common Pleas of Beaver County, Civil Division, at No. 1068 of 1984.


Michael J. Betts, Pittsburgh, for appellant.

Thomas E. Lippard, Pittsburgh, for appellee.

Brosky, Wieand and Del Sole, JJ.

Author: Del Sole

[ 373 Pa. Super. Page 488]

Presented for our consideration in this appeal is a question of whether an oral contract is enforceable under an exception to the Statute of Frauds, 13 Pa.C.S. § 2201. Since we conclude the contract is enforceable because partial payment was made and accepted for the goods, we must also examine Appellant's contention that Appellee should

[ 373 Pa. Super. Page 489]

    not have been entitled to recover the price of the goods which were the subject of the contract. Appellant alleges that Appellee failed to establish that it had made a reasonable effort to resell the goods as required under 13 Pa.C.S. § 2709. Finding this second claim to also be meritless, we affirm the Judgment entered by the trial court.

A brief review of the factual background of this case is necessary to a discussion of Appellant's claims. The facts relayed at trial, when read in a light most favorable to Appellee as the verdict winner, establish the following. Appellee, W.I. Snyder Corp., was in the business of purchasing high grade metals to sort and prepare for later resale to local steel mills. For approximately three to four years prior to the time the parties entered into the subject contract they engaged in business dealings. During this period of time, Appellant would generally telephone William Snyder about scrap metal Appellant had for sale. In a January, 1984 phone conversation Appellant mentioned to William Snyder that he was looking for some equipment. Mr. Snyder indicated that he had recently purchased a nearby facility, had removed all the equipment he needed and was willing to sell all the equipment remaining at the facility, which included cranes, bulldozers and bobcats as well as hundreds of small tools and parts, as a package for $120,000.00. Appellant responded that he was interested in such a deal and inquired whether Mr. Snyder would take a few loads of scrap as payment. Appellant also relayed that he could ship at least "two or three loads . . . right away as a downpayment." N.T. 5/12/86 at 24. It was decided that Mr. Snyder would make a trip to Appellant's plant to see the scrap which Appellant wished to use as a downpayment.

At Appellant's plant Mr. Snyder was met by Appellant and his son Charles Caracciolo, Jr. Mr. Snyder was shown the scrap and he stated that it was acceptable to him. The parties then discussed arrangements for enabling Appellant's son to inspect the equipment. It was agreed that Appellant's son would travel to Appellee's plant with a load of scrap to be used as the first downpayment for the

[ 373 Pa. Super. Page 490]

    equipment. This load was to consist of material which Mr. Snyder had purchased from Appellant in the past. Two subsequent loads of material, a type which Mr. Snyder had never before purchased, were also to be sent at a later time as partial payment.

As arranged, Appellant's son and a truck driver traveled to Appellant's plant and brought with them a load of stainless steel. A Bill of Lading was stamped and signed as received and a receiving memorandum which detailed the weight and price of the shipment, $10,409.59, was sent to Appellant. Upon his arrival, Appellant's son was escorted to the plant where the equipment was housed. He remained there for less than an hour before he returned to Mr. Snyder's office and informed him that he liked what he saw and he would call Mr. Snyder shortly. The next day Appellant's son telephoned Mr. Snyder asking if he could have his experts look at the equipment. Mr. Snyder responded that this would be fine with him and three or four days later Appellant's son returned to Appellee's plant along with two other individuals. The men examined the equipment for approximately three hours but did not start any of the engines. Appellant's son then returned to Mr. Snyder's office and informed him that once he spoke to his father they would probably go through with the deal. Mr. Snyder and Appellant's son again discussed the payment plan which included two loads of material never before purchased by Appellee which was to serve as a down payment.

Two loads were subsequently shipped to Appellee on February 21 and March 1, 1984. The materials contained in this shipment were of a type which Appellee had never before purchased from Appellant. A receiving memorandum was sent to Appellant which listed the total price of the two shipments as $10,211.72. Shortly thereafter, on March 7, Mr. Snyder received a call from Appellant who expressed satisfaction with the equipment and stated that they would go ahead with its purchase. Two days later Appellant again called Mr. Snyder and stated that he would

[ 373 Pa. Super. Page 491]

    pick up the equipment on Monday and that he would bring trucks and mechanics to facilitate this. Mr. Snyder expressed a desire to have the terms of their agreement detailed in a written contract, but Appellant stated that he believed such a writing was unnecessary since Appellee already had three truckloads on account. Appellant and Appellee further agreed that Appellant would ship Appellee scrap for the remainder of the year and if the loads did not meet the $120,000.00 contract price for the equipment Appellant would settle the account at that time.

On Monday, March 12, 1984 Appellant's son arrived at the warehouse with trucks and men and was admitted by Appellee's employee. Approximately five hours later Appellant's son went to Mr. Snyder's office and announced: "You better send somebody over there to lock up, you know, the place is wide open. We are not taking anything. We pulled out. We are not taking any of the equipment." N.T. 5/12/86 at 60. ...

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