Contracts II, Pages 650–658

Howard Construction Co. v. Jeff-Cole Quarries, Inc.

Missouri Court of Appeals, November 8, 1983

Facts:

Plaintiff was the successful bidder on a Missouri Highway Department project to construct part of a highway. Before being awarded the bid, it received from defendant a typewritten proposal that listed the prices of what was needed for the project. After the bid letting, plaintiff's superintendent, Moore, met with defendant's president, Adrian, to discuss the project.

Moore claims that they agreed to change the prices and that he changed he wrote in the new prices that they decided upon onto the proposal. Adrian claims that the parties could not come to an agreement in the meeting as to the sale price of asphaltic rock.

Procedural History:

Trial court granted summary judgment for defendant on both counts.

Issue:

Does the statute of frauds bar a contract if it has a signed writing from before an agreement was reached with a different price?

Defendant's Argument:

The statute of frauds (UCC § 2-201) bars enforcement of such an agreement even if it was made.

Plaintiff's Argument:

There is a genuine dispute of fact. The statute of frauds does not apply because defendant signed an agreement and partially performed.

Rule:

A writing must be "sufficient to indicate that a contract for sale has been made."

Reasoning:

The proposal had a differences in prices when it was signed, which were "significant divergences of material terms." It does not indicate that an agreement was ever reached. Partial performance only excepts the statute of fraud in relation to the item that was performed.

Holding:

Yes, the statute of frauds bars a contract if the only writing differs as to material terms. Affirmed.

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