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NORMINJIL SPORTSWEAR CORP. v. T G & Y STORES CO.

January 23, 1985

NORMINJIL SPORTSWEAR CORP., d/b/a SEA ISLE SPORTSWEAR, Plaintiff,
v.
T G & Y STORES CO., INC., Defendant



The opinion of the court was delivered by: LOWE

MARY JOHNSON LOWE, D. J.

MEMORANDUM OPINION AND ORDER

 This is an action in contract for the sale of certain goods. The plaintiff Norminjill Sportswear Corp. d/b/a Sea Isle Sportswear ("Sea Isle") alleges that it entered into a contract for sale of several hundred thousand dollars of children's sportswear to the defendant. The defendant now moves for summary judgment on the grounds that the action is barred by the statute of frauds. For the reasons stated below we grant summary judgment to the defendant and dismiss the case.

 Facts

 Sea Isle is the maker of sportswear called the "Easter Ad Linen Group." In its complaint Sea Isle alleges that an agent for the defendant T G & Y Stores Co., Inc. ("TGY"), entered into an oral contract for $208,500 worth of Easter Ad Linen Group clothing.* Complaint P6. It then alleges that it "delivered to defendant by mail its written confirmation of the Contract . . . " Complaint P7.

 TGY denies that it entered into the contract. In discovery TGY demanded production of any writing regarding the sale. The only writing produced was the "written confirmation" referred to in the complaint. It is undisputed that it was the only memorandum which embodied th terms of the "sale" in any way. It is also undisputed that the defendant did in fact receive the memorandum within ten days of the alleged order. The memorandum which Sea Isle alleges is a written confirmation is as follows: SEA ISLE SPORTSWEAR Pic. & Disc. sent 8/18 Easter AD Linen Group Delivery Color - 2/15-2/25-84 Lilac Covered Style 7/14 Quantity Description 7271 5.50 ea. 500 To 550 DZ Solid Linen Flip Skirt-Wide Novelty Belt with Buckle. 7273 8.75 ea. 500 To 550 DZ Solid Linen Double Breasted Blazer-Notched Collar. 7274 5.50 ea. 500 To 550 DZ Solid Linen Button Coat Front Skirt-Side Stitched Down Pleats. 7275 5.00 ea. 500 To 550 DZ Short Sleeve Poly Cotton Stripe Clip Blouse contrasting Large Print Bow-White Collar and Cuffs. 7276 5.00 ea. 500 To 550 DZ Short Sleeve Poly Cotton Blouse- Multi Color Novelty Clip Tattersol-Bow Blouse-Cuffs. 7278 5.00 ea. 500 to 550 DZ Short Sleeve Poly Cotton Blouse, Multi Color Polka Dot-Ruffle Stand Up Collar-Self Tie Bow- Elastic Cuffs.

 Att. Alan: I ordered additional goods. If you decide to buy the group in 4/68 there would be no problem.

 There are various disputes between the parties concerning whether and when TGY objected to the memorandum and as to the prior course of dealing between the parties. However, since we find that the memorandum is deficient as a matter of law,*1 these disputed issues are not material within the meaning of Fed.R.Civ. P. 56.

 Discussion

 The statute of frauds is intended to prevent fraud, not aid it. Courts will generally construe it liberally in the interest of substantial justice, however, it is well settled that the statute evidences an unmistakable legislative policy which the courts are not free to ignore. When a case falls within the ambit of the statute it acts as a bar to the action unless one of the defenses to the statute is present or its mechanical application would lead to a conclusion which is repugnant to common sense. Radke v. Brenon, 271 Minn. 35, 134 N.W.2d 887 (1965).

 In the case at bar the parties agree that the applicable statute is § 2-201 of the Uniform Commercial Code. N.Y.U.C.C. § 2-201 (McKinney 1964). That section states in pertinent part:

 
(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 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. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
 
(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 reasons to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of ...

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