A) or any other document in this case satisfies this requirement.
Only by assuming that other material not signed or accepted by Alpine can be used to fill in the crucial quantity term necessary to a contract,
can the Thirteen Points (Appendix A) constitute a complete proposed agreement, even disregarding its requirement for a "Firm offer in writing."
Section 2-201(2) permits a confirmation "sufficient against the sender" to be effective between merchants unless written notice of objection is given within ten days of receipt. Durable argues that a memorandum of May 17, 1990 (Appendix D to this memorandum order) meets this criterion. It does not. Rather than setting forth any contract terms "sufficient against the sender," the May 17 document merely assumes that Alpine's purchasing from a competitor was contrary to what Durable called "our agreement" and that Durable's president was "going through the roof."
Appendix D expresses anger at the breakdown of a potentially profitable relationship and seeks to place the blame on its recipient rather than seeking to confirm the existence of an agreement. It does not purport to be a confirmation. Instead, it constitutes a protest. In this context it would be illogical to insist that the recipient send a reply objecting to the communication on pain of being treated as having entered into a contract otherwise barred by a statute of frauds.
Dated: White Plains, N.Y.
December 15, 1993
/s/ John S. Martin, USDJ for
VINCENT L. BRODERICK, U.S.D.J.
250 West Nyack Road
West Nyack, New York 10994
1) 3 year committment.
2) $ 25,000.00 advertising allowance.
3) 1% spoils allowance/quarterly.
4) Everyday price of .549 for bag goods at $ 1.79 retail.
5) Special cost on lasagna pans of .76 cents.
6) Roaster prices not to exceed .59 cents or meet competitive
7) Terms 2%/45/46.
8) Pay 1/2 of $ 250,000.00 on date of first order with other
half on July 1st.
9) Make year 2 & 3 payments payable on anniversary dates on
acceptance of offer.
10) Relieve Alpine Distributors of any liability if Durable is
unable to service us at an acceptable level.
11) Buy back remaining EZ Por warehouse inventory.
12) Make Alpine a house account.
13) Firm offer in writing.
© 1992-2004 VersusLaw Inc.