Beatty, Paul F

Budd, Ruth R

Hilgendorff III, Hugo A

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Boston College Law ReviewVolume 7 | Issue 4 Article 67-1-1966Article 1: General ProvisionsPaul F. BeattyRuth R. BuddHugo A. Hilgendorff IIIFollow this and additional works at: http://lawdigitalcommons.bc.edu/bclrPart of the Commercial Law CommonsThis Uniform Commercial Code Commentary is brought to you for free and open access by the Law Journals at Digital Commons @ Boston CollegeLaw School. It has been accepted for inclusion in Boston College Law Review by an authorized administrator of Digital Commons @ Boston CollegeLaw School. For more information, please contact nick.szydlowski@bc.edu.Recommended CitationPaul F. Beatty, Ruth R. Budd, and Hugo A. Hilgendorff III, Article 1: General Provisions, 7 B.C.L. Rev.883 (1966), http://lawdigitalcommons.bc.edu/bclr/vol7/iss4/6-*NM \\\1:41UNIFORM COMMERCIAL CODEANNOTATIONSThis section contains a digest of all reported decisions interpreting pro-visions of the Uniform Commercial Code published during the month ofDecember 1965 in the National Reporter System.PAUL F. BEATTYRUTH R. BUDDHUGO A. HILGENDORFF IIIARTICLE 1: GENERAL PROVISIONSSECTION 1-205. Course of Dealing and Usage of TradeMARTIN V. BEN P. EUBANK LUMBER CO.395 S.W.2d 385 (Ky. Ct. App. 1965)This is an action by plaintiff to recover a ten per cent discount onbuilding materials purchased from defendant. Plaintiff attempted to procureby interrogatories names of other persons to whom defendant had given dis-counts to show an agreement as to the discounts, alleging that Section 1-205made such evidence competent. The lower court held for the defendant,stating that defendant was not required to disclose such names. The ap-pellate court affirmed, holding that Section 1-205 may be used to explainambiguities in a contract, but this does not mean that a course of dealing'ortrade usage may be used to make a contract. The court further held that theterm " 'ten per cent' is a plain term requiring no trade usage or custom todetermine its meaning."COMMENTContrary to the court's position, under Section 2-204, "course of dealing"or "usage of trade" can be used to make a contract for the sale of goods. Inaddition, the court erred in summarily excluding plaintiff's evidence con-cerning the term "ten per cent" on the ground that it "is a plain term re-quiring no trade usage to determine its meaning." The question was notwhether the term was ambiguous, but whether the agreement can be saidto have included the discount. Viewed in this light, evidence of course ofdealing or usage of trade is admissible. Section 2-202.The court's result, however, was correct, since the evidence should havebeen excluded on other grounds. The Code provides that a contract can beexplained and supplemented by (1) course of performance, (2) course ofdealing, and (3) usage of trade. Sections 1-205, -208. But the first two termsrequire evidence of dealings between the parties themselves, and "usage oftrade" is defined as "any practice or method of dealing having such reg-ularity of observance in a place, vocation or trade as to justify an expectation883BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEWthat it will be observed with respect to the transaction in question." Here,plaintiff's proffered evidence, showing transactions between the seller andother buyers, does not fit within any of the above terms.R.R.B.ARTICLE 2: SALESSECTION 2-104. Definitions: "Merchant"; "Between Merchants";"Financing Agency"COOK GRAINS, INC. V. FALLIS395 S.W.2d 555 (Ark. 1965)Annotated under Section 2-201, infra.SECTION 2-201. Formal Requirements; Statute of FraudsCOOK GRAINS, INC. V. FALLIS395 S.W.2d 555 (Ark. 1965)Defendant, a farmer, allegedly entered into a verbal agreement with anagent of plaintiff, a grain dealer, to sell 5,000 bushels of soybeans to plaintiff.Thereafter, in confirmation of the oral agreement, plaintiff sent a proposedwritten contract, which it had signed, to defendant for his signature, butdefendant neither signed nor returned the writing. When defendant refusedto deliver the beans, plaintiff brought an action for breach of the allegedcontract. Plaintiff contended that defendant was a "merchant" and that,even though he had not signed the writing as required by Section 2-201(1),the agreement was enforceable under Section 2-201(2) because defendantfailed to give notice of his objection to the written proposal. The trial courtentered judgment for defendant.In affirming, the supreme court held that the defendant was not a"merchant" within the meaning of Section 2-201(2), and thus his failureto object to the proposed contract within ten days after he had received itdid not render it enforceable. The court interpreted the definition of "mer-chant" in Section 2-104(1) as including only professional traders and notfarmers.COMMENTAlthough the court may not have been accurate when it determined thata farmer is not a "merchant" within the definition of Section 2-104(1), itsdecision may still be regarded as correct if the policy of giving special treat-ment to farmers and farm products set forth in Article 9, Sections 9-109,-307(1) and -401, is considered applicable to farmers under other Articlesas well.It is suggested, however, that all farmers may not deserve equal treat-ment since many men engaged in farming are now professionals within themeaning of Section 2-104. See Section 2-104, Comment 2. To these farmers,the provisions of Section 2-201(2) should be applicable.H.A.H.884

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