499 F.2d 951 (8th Cir. 1974)
Frances M. Bonebrake, as administratrix of the estate of Woodrow B. Simek, brought suit against Donald and Claude Cox, doing business as Tamarack Bowl, to recover the balance due on two contracts for the sale and installation of bowling equipment.1 In February 1968, a fire destroyed the Cox brothers' bowling alley in Missouri Valley, Iowa.2 On April 17, 1968, the Cox brothers contracted with Simek to purchase and install specified used equipment for a total price of $20,000.3 On August 23, 1968, they entered into a second contract for ten used Brunswick Model A pinspotters delivered and installed for $35,000.
Simek, a sole proprietor based in Ashland, Nebraska, who dealt in new and used bowling equipment, hired Ilert Avery, known as Blackie, to perform the installations. The pinspotters were placed at the end of the lanes by September 4, 1968, but were inoperative with many frozen bearings requiring replacement parts.4 Simek died on September 6, 1968, at which point multiple items from the first contract remained undelivered, including score chairs, fiberglass seating, a ball cleaning machine, lockers, house balls, storage racks, and rental shoes. The Cox brothers had paid $27,500 on the contracts combined.5
Following Simek's death, the Cox brothers sought assistance from his sister, Mrs. Bonebrake, and attempted to locate the missing equipment at Simek's warehouses with Blackie's help, but these efforts yielded little.6 After Blackie left the job following an altercation around September 12, the Cox brothers hired other specialists to complete repairs and installations.7 On September 17, 1968, their attorneys sent a letter to Mrs. Bonebrake describing the incomplete work, the need for repairs, payments made, and their intent to keep records of expenses for potential claims. The Tamarack Bowl opened for business on October 14, 1968.8
The district court, following the recommendation of a Special Master, entered judgment for the plaintiff in the amount of $27,000. The Cox brothers appealed to the United States Court of Appeals for the Eighth Circuit.9
Whether the Cox brothers' September 17, 1968 letter and prior communications provided sufficient notice of breach under UCC § 2-607(3)(a) after acceptance of the pinspotters?10
Under UCC § 2-607(3)(a), where a tender has been accepted the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.11 The content of the notification need merely be sufficient to let the seller know that the transaction is still troublesome and must be watched, without requiring a clear statement of all objections or a claim for damages.12
Yes. The Cox brothers accepted the defective pinspotters after they were placed at the end of the lanes by September 4, 1968.13 Their September 17 letter explicitly stated that the pinspotters were not installed within the meaning of the contract.14 The letter noted that repairs were needed although the contract included a guarantee as to the quality and performance of the equipment.15
It also indicated that the Cox brothers were keeping a record of their expenses so that they could substantiate a claim for any loss which may be sustained.16 This communication informed the seller that the transaction involved a breach and satisfied the statutory standard.17
The Cox brothers' September 17, 1968 letter and prior communications provided sufficient notice of breach under UCC § 2-607(3)(a).18
Whether the April 17, 1968 contract for the sale and installation of used bowling equipment is a transaction in goods governed by the Uniform Commercial Code?19
Article 2 of the UCC applies to transactions in goods, defined as all things which are movable at the time of identification to the contract for sale.20 For mixed contracts involving both goods and services, the test is whether the predominant factor, thrust, or purpose is the sale of goods with labor incidentally involved or the rendition of services with goods incidentally involved.21
Yes. The April 17 contract listed specific items of used equipment such as lane beds, ball returns, score chairs, a ball cleaning machine, lockers, house balls, storage racks, rental shoes, and foundation material for a total price of $20,000.22 The language employed is that peculiar to goods, referring to equipment purchased and lanes free from defects in workmanship and materials.23 The installation services were incidental to the replacement of equipment destroyed by fire.24
The April 17, 1968 contract for the sale and installation of used bowling equipment is a transaction in goods governed by the Uniform Commercial Code.25
Whether the circumstances after Simek's death, including inability to locate equipment and lack of assistance from his estate, constituted an anticipatory repudiation of the contracts?26
Anticipatory repudiation under the UCC occurs when a party takes action which reasonably indicates a rejection of the continuing obligation.27 The statutory requirement does not demand literal or utter impossibility of performance but rather action that reasonably signals the rejection of the obligation, allowing the aggrieved party to move for its own protection.28
Yes. After Simek's death on September 6, 1968, the Cox brothers found that most goods under the April contract remained undelivered and the pinspotters were seriously defective.29 Efforts to locate missing equipment at Simek's warehouses with Blackie's assistance proved fruitless, Mrs. Bonebrake provided no help, and Blackie left the job after an altercation around September 12.30 These circumstances reasonably indicated a rejection of the continuing obligation, justifying the buyers' decision to proceed on their own.31
The circumstances after Simek's death, including inability to locate equipment and lack of assistance from his estate, constituted an anticipatory repudiation of the contracts.32