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Cudahy Foods Co. v. Holloway

Filed: February 2, 1982.

CUDAHY FOODS COMPANY
v.
PEGGY HOLLOWAY



Appeal by defendant from Martin, Judge. Judgment signed 30 December 1980 in Superior Court, Durham County. Heard in the Court of Appeals 11 January 1982.

Martin (Harry C.), Judge. Chief Judge Morris and Judge Vaughn concur.

Martin

The sale in question brings the case within the statute of frauds provision of the Uniform Commercial Code, which reads in pertinent part:

(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500.00) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.

N.C. Gen. Stat. § 25-2-201(1) (1965).

Plaintiff, however, contends that under the facts of the case the sale was one between merchants, thus invoking subsection (2):

Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.

Id. § 25-2-201(2).

At issue, then, is whether defendant, a real estate broker who allegedly guaranteed payment for a shipment of cheese to a third party, comes within the definition of "merchant" as contemplated under the statute of frauds provision of the Uniform Commercial Code. We answer in the negative.

N.C.G.S. 25-2-104(1) defines "merchant" as "a person who deals in goods of the kind or otherwise by his occupation holds

himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction. . . ." "'Between merchants' means in any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants." N.C. Gen. Stat. § 25-2-104(3) (1965).

Defendant, at the time of the alleged sale, was a real estate broker. She did not deal in cheese, pizza, or in goods relating to the restaurant business. Nor by her occupation did she hold herself out as having knowledge or skill peculiar to the goods involved in the transaction. In fact, the nature of defendant's occupation precluded her dealing in goods at all. Real ...


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