STATEMENT OF THE CASE
Plaintiff-appellant, Continental Grain Company (Continental), appeals an adverse judgment rendered in the Brown Circuit Court in its suit for breach of a grain company's contract against defendant-appellee, Wilbur Followell.
STATEMENT OF THE FACTS
Followell, a Brown County farmer who had not previously dealt in grain futures, initiated a telephone call to an employee of Continental on March 14, 1983, which resulted in an oral agreement whereby he agreed to sell Continental 3000 bushels of corn at $2.81 per bushel, and 2000 bushels of soy beans at $6.01 per bushel, to be delivered September, October and November, 1983, at Continental's elevator in Evansville, Indiana. Following the conversation, Continental mailed a separate written
Within a few days, Followell called Chuen and told him he didn't agree with item 6. Upon hearing Chuen's reply that it didn't mean anything, Followell asked why it was in there. He told Chuen, "if I sign this, you can send me to Memphis, Tennessee or anywhere else you want me to go at my expense". Followell asked for an amendment, or a confirmation in writing of the Evansville destination only, and Chuen told him to return the document with his objection noted. A duplicate of the first document was sent back to Followell around April 7 or 8 without any change. Followell noted on the duplicate "I do not agree with item 6", and returned it to Continental. At approximately the same time, there were more phone conversations about item 6 during which Followell again requested a confirmation in writing or modification confirming only an Evansville destination. Continental did not comply with Followell's request until July 29, 1983, after a dramatic rise in the price of soy beans and grain, Continental sent a letter to Followell stating "we agree to your amendment and will guarantee Continental Evansville as destination of all shipments". The purchase confirmation was never signed by Followell.
In finding of facts and conclusions of law, the trial court essentially found that no contract was formed and there was no agreement, because the purchase confirmation contained terms and conditions not agreed upon, and therefore, the parties were not in agreement on all the essential terms of the contract and negotiations had terminated.
DISCUSSION AND DECISION
We are of the opinion that all of the issues are interwoven, and we will discuss them together. All Indiana Code references herein to the Uniform Commercial Code, IND. CODE 26-1-1-101, et seq, shall be made by the UCC designation.
Continental's argument proceeds in the following manner: even though the contract was oral, since Followell did not sign the Purchase Confirmation, the contract is enforceable and relief is not barred by the Statute of Frauds, 2-201, because (1) Followell admitted the existence of the March 14 oral contract at trial pursuant to 2-201(3)(b) and (2) after receiving the confirmation
It argues that the additional term; that is, the right to change the point of destination, does not render the oral contract made on March 14 unenforceable. While conceding that the additional term was objected to and does not form a part of the contract, Continental claims the remainder of the contract is enforceable as to the Evansville destination.
Followell's argument follows the trial court's finding that no contract was ever entered into. The principal issue in this case is whether a contract ever came into being. For the purpose of this opinion, we will assume that the statute of frauds forms no impediment to enforcement.
2-204 of the UCC states that a contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct of the parties. The Indiana comment to this section found in Burns IND. CODE states that to form a sales contract there must be a meeting of the minds, an assent by both parties growing out of their intentions and an agreement freely reached. The courts cannot supply provisions actually lacking or impose conditions not actually assumed. Under 2-202, final written expressions of agreement cannot be contradicted by evidence of prior agreement or a contemporaneous oral agreement but may only be explained or supplemented. An agreement is defined in 1-201(3) as a bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing, course of performance, or usage in the trade. The law of contracts supplements the provisions of the UCC 1-103.
Clearly, the expressions contained in the various sections of a sales contract require a meeting of the minds on material points, the absence of which prevents the formation of a contract.
Under the law of contracts, the intention of the parties is a factual matter to be determined by the trier from all of the circumstances, and a party relying on an express contract bears the burden of proving its existence. 6 I.L.E. Contracts, Sec. 21; Dyer Construction Co. v. Ellas Co., (1972) 153 Ind.App. 304, 287 N.E.2d 262. Where there is probative evidence to support the conclusion that there was no meeting of the minds between the parties, we will not disturb that conclusion. Dyer, supra.
We read 2-207(2) to mean that an acceptance containing additional or different terms forms a contract as to the original offer, but that the additional or different terms become proposals for additions
Section 2-207 abandons the mirror image rule that an acceptance must coincide exactly with all terms of an offer. Uniroyal, Inc. v. Chambers Gasket and Manufacturing Co., (1978) 177 Ind.App. 508, 380 N.E.2d 571; White & Summers, supra. 2-207 permits enforcement despite discrepancies between offer and acceptance if enforcement could be required without either party being bound to a material term to which he has not agreed. Uniroyal, supra, 380 N.E.2d at 575.
The phrase after the comma in 2-207(1) "unless acceptance is expressly made conditional on assent to the additional or different terms" must be construed as imposing a limitation upon how much an acceptance can differ and still be considered an acceptance at all. White & Summers state:
White & Summers, supra, at 27.
White & Summers also discuss the possibility which is the subject of this appeal, when a party insists on contracting on all his terms and prohibits any other terms:
Id. at 33-34.
As specifically stated, 2-207(1) applies to written confirmation of oral contracts. Therefore, where confirmation differs materially, no contract is formed. Not all return documents are 2-207(1) acceptances. Performance alters results, but performance is not involved here. Again, quoting from White & Summers:
Id. at 37.
The above quote finds support in Indiana case law. In Uniroyal, supra, Chambers, a buyer, mailed its purchase order to Uniroyal, seller, specifying only the quantity of goods, the price therefor, and the date of shipment. Uniroyal responded with its purchase order, which stated:
Uniroyal, supra, 380 N.E.2d at 577.
The terms involved severe restrictions on warranties, remedies, and notice. Goods were shipped and used, and the above order procedure was repeated, followed by additional shipments and delivery. The court discussed 2-207(1) in determining whether a contract was formed and on what terms.
Judge Sullivan, in Uniroyal, while concurring that no contract would be formed on the offer as in Roto-Lith, disagreed with the Roto-Lith holding that acceptance of the goods formed a contract on the offeree's terms. He held that the purpose of 2-207 would not be well served by allowing the offeree's responsive documents to state additional and different terms which would thereafter be deemed accepted by the offeror's inaction. The burden of affirmative objection to the original offer is in itself a modification to which the offeror should have to assent. The court concluded:
Id., 380 N.E.2d at 578.
Here, the confirmation diverged so materially in item 6, which reserved Continental's right to change the place of destination, that if exercised by Continental, it could be ruinous to Followell. Item 6, accompanied by item 9, the insistence that Continental's terms and no others would be accepted, makes the acceptance expressly conditional, and thus no 2-207(1) acceptance occurred. Unaided by performance, as in Uniroyal or Roto-Lith, no contract was formed. The placing of the burden of affirmative objection on Followell is inoperative; in any event; affirmative objection was made by Followell, and Continental does not contend otherwise.
Continental's reluctance and delay from March 14 to July 29 to modify item 6 in writing belies their oral protestation that item 6 "didn't mean anything". Only after negotiations had ceased, as the trial court found, and grain and soy bean prices had dramatically risen four and one-half months later, did Continental opt to accede to Followell's request. The court was correct in holding that no contract ever existed.
We have answered all legal questions raised in Issue 4. The factual issues are without merit.
For the above reasons, this cause is affirmed.
RATLIFF, P.J., and ROBERTSON, J., concur.