Chapter 21 by pengtao

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									                                          Chapter 22

              Performance and
             Breach of Sales and
              Lease Contracts

Case 22.1
352 N.Y.S.2d 784
76 Misc.2d 1080
MAPLE FARMS INC., Plaintiff,
v.
CITY SCHOOL DISTRICT OF the CITY OF ELMIRA, New York, Defendant.
Supreme Court, Special Term, Chemung County.
Feb. 1, 1974.
CHARLES B. SWARTWOOD, Justice.
This is a motion for summary judgment in an action for declaratory judgment whereby the plaintiff seeks, first, a
determination that the contract wherein the plaintiff agreed to supply milk to the defendant school district at an agreed
price be terminated without further liability on the grounds of legal "impossibility' or "impracticality' because of the
occurrence of events not contemplated by the parties which makes performance impracticable and, second, a determination
that the defendant school district has authority to unilaterally relieve the plaintiff of its contract without violating Article 8,
Section 1 of the New York State Constitution.
We commend counsel on the quality of their briefs. The background of this dispute is that the price of raw milk at the farm
site is and has been controlled for many years in this area by the United States Department of Agriculture through the New
York-New Jersey Market Administrator. The president of the plaintiff milk dealer has for at least ten years bid on contracts
to supply milk for the defendant school district and is thoroughly conversant with prices and costs.
Though the plaintiff avers that the defendant was aware of the prices of raw milk and the profit picture, the fiscal officer of
the defendant denies that either the price of raw milk or the profit structure of suppliers was known or of any concern to him

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or the defendant. The defendant's only concern was the assurance of a steady supply of milk for the school lunch program at
an agreed price on which the school's budget had to be based. The mandated price of raw milk has in the past fluctuated
from a cost of $6.73 cwt. in 1969 to a high of $7.58 cwt. in 1972, or 12%, with fluctuation within a calendar year ranging from
1% To 4.5%. The plaintiff agreed to supply milk to the defendant for the school year 1973-1974 by agreement of June 15,
1973 at a price of $.0759 per half pint, at which time the mandated price of raw milk was $8.03 cwt.
By November of 1973 the price of raw milk had risen to $9.31 cwt. and by December 1973 to $9.89 cwt., an increase of 23%
Over the June 1973 price. However, it should be noted that there was an increase from the low price in 1972 to the June
1973 price (date of the contract) of 9.5%. Because of considerable increase in the price of raw milk, the plaintiff, beginning in
October 1973, has requested the defendant to relieve the plaintiff of its contract and to put the contract out for rebidding.
The defendant has refused. The plaintiff spells out in detail its costs based on the June and December prices of raw milk and
shows that it will sustain a loss of $7,350.55 if it is required to continue its performance on the same volume with raw milk
at the December price.
Its contracts with other school districts where it is faced with the same problem will triple its total contemplated loss. The
plaintiff further claims that because of the advent of the federally sponsored milk lunch subsidy of $.04 to the defendant, the
price per half pint of milk will be dropped to $.05 and the volume of milk sold will increase, thus further increasing the
plaintiff's loss.
There is no substantiation for this estimated volume increase so that we do not meet that question. The plaintiff goes to
great lengths to spell out the cause of the substantial increase in the price of raw milk, which the plaintiff argues could not
have been foreseen by the parties because it came about in large measure from the agreement of the United States to sell
huge amounts of grain to Russia and to a lesser extent to unanticipated crop failures. The legal basis of the plaintiff's
request for being relieved of the obligation under the contract award is the doctrine known variously as "impossibility of
performance' and "frustration of performance' at common law and as "Excuse by Failure of Presupposed Conditions' under
the Uniform Commercial Code, s 2-615.
The common law rule is stated in Restatement of The Law, Contracts, Volume 2, Section 454, as follows:
"s 454. DEFINITION OF IMPOSSIBILITY.
In the Restatement of this Subject impossibility means not only strict impossibility but impracticability because of extreme
and unreasonable difficulty, expense, injury or loss involved.' Performance has been excused at common law where
performance has become illegal, Boer v. Garcia, 240 N.Y. 9, 147 N.E. 231; Matter of Kramer & Uchitelle, Inc., 288 N.Y. 467,
43 N.E.2d 493; Labaree Co. v. Crossman, 100 App.Div. 499, 92 N.Y.S. 565, affd. no op. 184 N.Y. 586, 77 N.E. 1189; where
disaster wipes out the means of production, Goddard v. Ishikawajima-Harima Heavy Industries Co., 29 A.D.2d 754, 287
N.Y.S.2d 901, affd. no op. 24 N.Y.2d 842, 300 N.Y.S.2d 851, 248 N.E.2d 600; where governmental action prevents
performance, Nitro Powder Co. v. Agency of Canadian Car & Foundry Co., 233 N.Y. 294, 135 N.E. 507; Mawhinney v.
Millbrook Woolen Mills, 231 N.Y. 290, 132 N.E. 93. In Mineral Park Land Co. v. Howard, 172 Cal. 289, 156 P. 458 (1916) the
defendants agreed to take all the gravel from the plaintiff's land up to a certain quantity. The defendants took only half the
agreed amount because the balance of the gravel was under the water level. The court relieved the defendants from the
obligation to pay for the balance under water because it was not within the contemplation of the parties that the gravel
under the water level would be taken and secondly because the cost of doing so would be ten to twelve times as expensive.
The court stated the common law rule, 172 Cal. 293, 156 P. at page 460:
"(4) "A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be
done at an excessive and unreasonable cost.' (1 Beach on Contr. s 216.) We do not mean to intimate that the defendants could
excuse themselves by showing the existence of conditions which would make the performance of their obligation more
expensive than they had anticipated, or which would entail a loss upon them. But, where the difference in cost is so great as
here, and has the effect, as found, of making performance impracticable, the situation is not different from that of a total
absence of earth and gravel.' 407 E. 61st Garage v. Savoy Corp., 23 N.Y.2d 275, 296 N.Y.S.2d 338, 244 N.E.2d 37, holds that
where economic hardship alone is involved performance will not be excused. This is so even where governmental acts make
performance more expensive. Baker v. Johnson, 42 N.Y. 126; United States v. Wegematic Corp., 2 Cir., 360 F.2d 674.
Existing circumstances and foreseeability also play a part in determining whether a party should be relieved of his contracts.
407 E. 61st Garage v. Savoy Corp., Supra; Farlou Realty Corp. v. Woodsam Associates, Inc., 49 N.Y.S.2d 367, affd. no op. 268
App.Div. 975, 52 N.Y.S.2d 575, affd. no op. 294 N.Y. 846, 62 N.E. 396. The Uniform Commercial Code, s 2-615 states in part:
"Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted
performance:
(a) Delay in delivery or non-delivery in whole or in part by a seller . . . is not a breach of his duty under a contract for sale if
performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a
basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic
governmental regulation or order whether or not it later proves to be invalid.' The Official Comment, Number "3' to that
368        CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW


section points out that the test of impracticability is to be judged by commercial standards. Official Comment Number "4'
states:
"Increased cost alone does not excuse performance unless the rise in cost is due to some unforeseen contingency which alters
the essential nature of the performance. Neither is a rise or a collapse in the market in itself a justification, for that is
exactly the type of business risk which business contracts made at fixed prices are intended to cover.
But a severe shortage of raw materials or of supplies due to a contingency such as war, embargo, local crop failure,
unforeseen shutdown of major sources of supply or the like, which either causes a marked increase in cost or altogether
prevents the seller from securing supplies necessary to his performance, is within the contemplation of this section. (See
Ford & Sons, Ltd., v. Henry Leetham & Sons, Ltd., 21 Com. Cas. 55 (1915, K.B.D.).)' Official Comment Number "10' states
in part that ". . . governmental interference cannot excuse unless it truly "supervenes' in such a manner as to be beyond the
seller's assumption of risk.'
We find little authority dealing with this section based on facts that are similar to those in this case. See, however:
Transatlantic Financing Corporation v. United States, 124 U.S.App.D.C. 183, 363 F.2d 312; United States v. Wegematic
Corporation, supra, 2 Cir., 360 F.2d 674, and Natus Corporation v. United States, 371 F.2d 450, 178 Ct.Cl. 1. The
Transatlantic case is somewhat analogous to the question raised here. In that case the Suez Canal was closed causing the
plaintiff's ship en route to Iran to have to go around Africa to deliver its cargo of wheat. The plaintiff sought to recover the
increased expense from the defendant. The court found that shipping dangers in the Suez Canal area could have been
anticipated; that the risk should be allocated to the plaintiff and that the increased cost was not of such magnitude to say
that it was not within the accepted degree of risk. The doctrine enunciated by Uniform Commercial Code, s 2-615 was
explained by the court, 363 F.2d at page 315:
"The doctrine ultimately represents the evershifting line, drawn by courts hopefully responsive to commercial practices and
mores, at which the community's interest in having contracts enforced according to their terms is outweighed by the
commercial senselessness of requiring performance. When the issue is raised, the court is asked to construct a condition of
performance based on the changed circumstances, a process which involves at least three reasonably definable steps. First, a
contingency-something unexpected-must have occurred. Second, the risk of the unexpected occurrence must not have been
allocated either by agreement or by custom. Finally, occurrence of the contingency must have rendered performance
commercially impracticable.'
Applying these rules to the facts here we find that the contingency causing the increase of the price of raw milk was not
totally unexpected. The price from the low point in the year 1972 to the price on the date of the award of the contract in June
1973 had risen nearly 10% And any businessman should have been aware of the general inflation in this country during the
previous years and of the chance of crop failures.
However, should we grant that the first test had been met and thus the substantial increase in price was due to the sale of
wheat to Russia, poor crops and general market conditions which were unexpected contingencies, then the question of
allocation of risk must be met.
Here they very purpose of the contract was to guard against fluctuation of price of half pints of milk as a basis for the school
budget. Surely had the price of raw milk fallen substantially, the defendant could not be excused from performance. We can
reasonably assume that the plaintiff had to be aware of escalating inflation. It is chargeable with knowledge of the
substantial increase of the price of raw milk from the previous year's low. It had knowledge that for many years the
Department of Agriculture had established the price of raw milk and that that price varied.
It nevertheless entered into this agreement with that knowledge. It did not provide in the contract any exculpatory clause to
excuse it from performance in the event of a substantial rise in the price of raw milk. On these facts the risk of a substantial
or abnormal increase in the price of raw milk can be allocated to the plaintiff. As pointed out in the Transatlantic case, 363
F.2d at page 319, where the circumstances reveal a willingness on the part of the seller to accept abnormal rises in costs, the
question of impracticability of performance should be judged by stricter terms than where the contingency is totally
unforeseen. The increase in the price of raw milk from June to December 1973 was 23% And the estimated loss to the
plaintiff in completing the contract on the same assumed volume and estimated cost of raw milk would be $7,350.55.
Based on the plaintiff's December 1973 figures, including increased transportation cost, the cost of a delivered half pint of
milk would be 10.4% Greater than the bid price. The percentage would be 8.7% Without the increased transportation cost.
There is no precise point, though such could conceivably be reached, at which an increase in price of raw goods above the
norm would be so disproportionate to the risk assumed as to amount to "impracticality' in a commercial sense.
However, we cannot say on these facts that the increase here has reached the point of "impracticality' in performance of this
contract in light of the risks that we find were assumed by the plaintiff. The plaintiff also seeks a declaratory judgment that
the defendant could agree to cancel the contract without violating Article 8, Section 1 of the New York State Constitution.
See: New York Telephone Company v. Board of Education, 270 N.Y. 111, 200 N.E. 663. Since the defendant has not indicated
any willingness to excuse the plaintiff from performance, there is therefore no issue in that regard before us since we have
held that the plaintiff is not entitled to be excused from performance under the law. We do not pass on any question of the
                    CHAPTER 22: PERFORMANCE AND BREACH OF SALES AND LEASE CONTRACTS                                         369

impact of an unexpected increase in volume, if that proves to be true, through the impact of the United States school lunch
program.
The plaintiff's motion is denied and the defendant is granted summary judgment dismissing the complaint.




Case 22.2
922 So.2d 303, 31 Fla. L. Weekly D474
District Court of Appeal of Florida,Third District.
Jorge JAUREGUI, Appellant,
v.
BOBB'S PIANO SALES & SERVICE, INC., a Florida corporation d/b/a Bobb's Piano
& Organs of Miami, Inc., Appellee.
No. 3D05-340.
Feb. 15, 2006.
, Senior Judge.
The plaintiff purchased a piano from the defendant which was represented to be in new condition but was delivered with
unacceptable damage. He appeals from the judgment of a successor judge vacating a judgment of his predecessor in
plaintiff's favor for the return of the purchase price *305 from the defendant (and that of the piano to the defendant) and
found instead that he had sustained no recoverable damages.
          Judge Harnage's original judgment provides:
          THIS CAUSE came on for non-jury trial before me on October 27, 28, and December 8, 2004, with closing arguments
          on December 16, 2004.       After hearing the testimony of the witnesses, reviewing the evidence presented, and
          reviewed argument of counsel (and in conformance with my oral ruling in open court on December 16, 2004), I find
          for the Plaintiff, Jorge Jauregui, and enter this Final Judgment against the defendant, Bobb's Piano Sales and
          Service, Inc.
          While not a complete or exhaustive detailing of the facts found and legal conclusions made, the rationale for this
          ruling and adjudication follow:
          1. On November 11, 2001, the parties entered into a contract for sale and purchase of a new piano for $24,282.00, a
          certain Kawai RX5 piano, Serial No. 2392719.
          2. Reviewing the documentary evidence, juxtaposing it with the testimony before me in open court, I conclude that
          this is not a “buyer's remorse” situation.     The plaintiff, whom I find credible, has shown, even by clear and
          convincing evidence, that the piano delivered was not new.* I reach this conclusion-even though the piano may
          have qualified for the manufacturer's new piano warranty-from my own observation of the video taken almost
          contemporaneously with the delivery, along with the uncontroverted fact that this piano was in inventory almost a
          year (admittedly having been moved at least six to eight times) and, the Defendant's acknowledgment that the piano
          needed repairs.
          3. One striking item of evidence was the Defendant's own April 10, 2002 letter; I listened to Mr. Messingschlager's
          testimony about it, including the role of his mother in the preparation of the letter. There are at least four
          references in this letter, which he sent back to the Florida Department of Agriculture and Consumer Services, that
          discuss, or reference, necessary repairs.
          4. Further, I accept the compelling testimony of Mr. William Atkinson, who was in a unique position as he was both
          a fact witness and an expert witness in certain areas.
          5. As specific performance is no longer a cause of action in this litigation, the damages incurred by the Plaintiff in
          not receiving a new piano [regardless of the serial number] can only be rectified by entry of a money judgment.
          THEREFORE, it is ORDERED and ADJUDGED that:
          A. Final Judgment is entered for Plaintiff. Defendant Bobb's Piano Sales and Service, Inc., shall pay to the
          Plaintiff, Jorge Jauregui, the sum of the contract price of $24,282.00, which shall bear interest at the statutory rate
          until paid, for which sum let execution issue;
          B. Plaintiff Jorge Jauregui shall return the delivered piano, a Kawai RX5, Serial No. 2392719 to Defendant Bobb's
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         Pianos & Organs of Miami, Inc. Defendant will be responsible for paying for the removal of the piano from Plaintiff's
         home. Mr. Jauregui shall make the piano available for removal, with advance notice, at a reasonably convenient
         time for the parties;
         C. As the contract allows for attorneys fees and costs to the prevailing party, the plaintiff is entitled to fees and
         costs, which sums are to be included in the damages awarded; and
         D. The attorneys' fees and costs will be determined by a successor judge.              Jurisdiction is reserved for the
         assessment of the amount of attorney's fees and costs to be awarded.
         * I am not finding that the piano had been sold before, only that it was not in new condition when delivered.
         The amended final judgment included an additional finding that the value of the piano was $24,282.00, and
         provided, in pertinent part: “Final Judgment is entered for Plaintiff. Plaintiff has established that Defendant
         breached the contract between the parties. Plaintiff, however, takes nothing in damages.”
For two reasons, we vacate the post-judgment judgment on appeal with directions to reinstate the previous one.
I. First, it is quite obvious that the successor judge lacked the power or authority to revisit, much less reverse, the previous
decision on the merits. See ; ; , cert. denied, .
II. Second, and more important, the judgment on review was erroneous as a matter of law. It is based on the rationale that
because, even in its defective condition, the piano was worth as much or more than plaintiff actually paid, no actionable
damages had been sustained for breach of the contract for purchase and sale. See . It is the law, however, as reflected in
the judgment rendered by the actual trial judge, that, in a case such as this one, the purchaser of non-conforming goods like
the offending piano retains the option to claim either the difference in value or, as plaintiff clearly did in this case, in effect,
to cancel the deal and get his money back. See , .714, Fla. Stat. (2005); ; ; , review denied, ; see also (applying rule to
delivery of defective piano). This principle is based on the common sense idea that the purchaser is entitled to receive what
he wanted to buy and pay for and that the seller is not free to supply any non-conforming item she wishes just so long as the
deviant goods are worth just as much. See , .601, .608, Fla. Stat. (2005); . The initial judgment properly reflects this ethic
and is therefore reinstated. We agree with plaintiff that the amount of the judgment should be increased by $1248, the
amount of sales tax and delivery charge paid by plaintiff, which was inadvertently omitted.
Accordingly, the judgment under review is reversed and the cause remanded with directions and for further proceedings
consistent herewith, including the assessment of attorneys' fees in plaintiff's favor under the pertinent provision of the sales
agreement.
         The contract states:
         In the event it is necessary to pursue litigation or court proceedings to enforce any of the terms, conditions or
         covenants in this agreement, the prevailing party shall be entitled to costs of suit, costs in all trials or appellate
         courts, reasonable attorneys' fees, and all other expenses connected therewith.
Reversed and remanded.




Case 22.3
269 Neb. 51, 690 N.W.2d 605
Supreme Court of Nebraska.
James G. FITL, appellee,
v.
Mark STREK, doing business as Star Cards of San Francisco, appellant.
No. S-03-836.
Jan. 7, 2005.
Wright, J.
NATURE OF CASE
 James G. Fitl purchased a baseball card from Mark Strek, doing business as Star Cards of San Francisco. When Fitl
discovered that the baseball card had been altered and was of no value, he sued Strek for what he argued was the current
fair market value of an unaltered version of the same card. Following a bench trial, judgment was entered against Strek in
the amount of $17,750 plus costs. Strek appeals.
SCOPE OF REVIEW
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 [1] In a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside on
appeal unless clearly erroneous. Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004).
FACTS
 In September 1995, Fitl attended a sports card show in San Francisco, California, where Strek was an exhibitor. Fitl
subsequently purchased from Strek a 1952 Mickey Mantle Topps baseball card for $17,750. According to Fitl, Strek
represented that the card was in near mint condition. After Strek delivered the card to Fitl in Omaha, Nebraska, Fitl placed
it in a safe-deposit box.
In May 1997, Fitl sent the baseball card to Professional Sports Authenticators (PSA), a grading service for sports cards that
is located in Newport Beach, California. PSA reported to Fitl that the baseball card was ungradable because it had been
discolored and doctored.
On May 29, 1997, Fitl wrote to Strek and indicated that he planned to pursue "legal methods" to resolve the matter. Strek
replied that Fitl should have initiated a return of the baseball card in a timely fashion so that Strek could have confronted
his source and remedied the situation. Strek asserted that a typical grace period for the unconditional return of a card was
from 7 days to 1 month.
In August 1997, Fitl sent the baseball card to ASA Accugrade, Inc. (ASA), in Longwood, Florida, for a second opinion. ASA
also concluded that the baseball card had been refinished and trimmed.
On September 8, 1997, Fitl sued Strek, alleging that Strek knew the baseball card had been recolored or otherwise altered
and had concealed this fact from him. Fitl claimed he had reasonably relied upon Strek's status as a reputable sports card
dealer. Strek's answer generally denied Fitl's allegations.
In a trial to the court, Fitl appeared with counsel and offered evidence. Strek was represented by counsel but did not appear
or offer any evidence. Fitl testified that he was in San Francisco over the Labor Day weekend of 1995, where he met Strek at
a sports card show. Fitl subsequently purchased from Strek a 1952 Mickey Mantle Topps baseball card and placed it in a
safe-deposit box. In 1997, Fitl retrieved the baseball card and sent it to PSA, a sports card grading service.
Steve Orand testified that he had been a sports card collector for 27 years and that he bought, sold, and traded cards. He
testified that PSA originated in 1996 or 1997 and was a leader in the sports card grading industry. He stated that PSA
would not grade an altered card because alteration would totally devalue the card. He opined that any touchup or trimming
of a card would render the card valueless and that an altered card is worth no more than the paper on which it is printed.
Orand examined the baseball card in question the week before trial and said that the edges of the card had been trimmed
and reglued. One spot on the front of the baseball card and a larger spot on the back had been repainted, which left the card
with no value. He testified that the standard for sports memorabilia was a lifetime guarantee and that a reputable collector
would stand behind what he sold and refund the money if an item were fake or had been altered.
The district court entered judgment for Fitl in the amount of $17,750 and costs. The court found that Fitl had notified Strek
as soon as he realized the baseball card was altered and worthless and that Fitl had notified Strek of the defect within a
reasonable time after its discovery. The court rejected Strek's theory that Fitl should have determined the authenticity of
the baseball card immediately after it had been purchased.
ASSIGNMENT OF ERROR
 [2] Strek claims that the district court erred in determining that notification of the defective condition of the baseball card 2
years after the date of purchase was timely pursuant to Neb. U.C.C. § 2-607(3)(a) (Reissue 2001).
ANALYSIS
 In a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside on
appeal unless clearly erroneous. Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004). The district
court found that Fitl had notified Strek within a reasonable time after discovery of the breach. Therefore, our review is
whether the district court's finding as to the reasonableness of the notice was clearly erroneous.
Section 2-607(3)(a) states: "Where a tender has been accepted ... the buyer must within a reasonable time after he discovers
or should have discovered any breach notify the seller of breach or be barred from any remedy [.]" "What is a reasonable
time for taking any action depends on the nature, purpose and circumstances of such action." Neb. U.C.C. § 1- 204(2)
(Reissue 2001).
[3][4] The notice requirement set forth in § 2-607(3)(a) serves three purposes. It provides the seller with an opportunity to
correct any defect, to prepare for negotiation and litigation, and to protect itself against stale claims asserted after it is too
late for the seller to investigate them. See Cheyenne Mountain Bank v. Whetstone Corp., 787 P.2d 210 (Colo.App.1990).
"Whether the notice given is satisfactory and whether it is given within a reasonable time are generally questions of fact to
be measured by all the circumstances of the case." Id. at 213.
In Maybank v. Kresge Co., 302 N.C. 129, 273 S.E.2d 681 (1981), the court reviewed the policies behind the notice
requirement. The most important one is to enable the seller "to make efforts to cure the breach by making adjustments or
replacements in order to minimize the buyer's damages and the seller's liability." Id. at 134, 273 S.E.2d at 684. A second
policy is to provide the seller "a reasonable opportunity to learn the facts so that he may adequately prepare for negotiation
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and defend himself in a suit." Id. A third policy, designated the "least compelling" by the court, is the same as the policy
behind statutes of limitation: "to provide a seller with a terminal point in time for liability." Id. at 135, 273 S.E.2d at 684.
[5] Fitl purchased the baseball card in 1995 and immediately placed it in a safe-deposit box. Two years later, he retrieved
the baseball card, had it appraised, and learned that it was of no value. Fitl testified that he had relied on Strek's position as
a dealer of sports cards and on his representations that the baseball card was authentic. In Cao v. Nguyen, 258 Neb. 1027,
607 N.W.2d 528 (2000), we stated that a party is justified in relying upon a representation made to the party as a positive
statement of fact when an investigation would be required to ascertain its falsity. In order for Fitl to have determined that
the baseball card had been altered, he would have been required to conduct an investigation. We find that he was not
required to do so. Once Fitl learned that the baseball card had been altered, he gave notice to Strek.
As the court noted in Maybank v. Kresge Co., supra, one of the most important policies behind the notice requirement of
North Carolina's equivalent to § 2-607(3)(a) is to allow the seller to cure the breach by making adjustments or replacements
to minimize the buyer's damages and the seller's liability. However, even if Fitl had learned immediately upon taking
possession of the baseball card that it was not authentic and had notified Strek at that time, there is no evidence that Strek
could have made any adjustment or taken any action that would have minimized his liability. In its altered condition, the
baseball card was worthless.
Strek claimed via his correspondence to Fitl that if Strek had received notice earlier, he could have contacted the person who
sold him the baseball card to determine the source of the alteration, but there is no evidence to support this allegation. In
fact, Strek offered no evidence at trial. His letter is merely an assertion that is unsupported. Earlier notification would not
have helped Strek prepare for negotiation or defend himself in a suit because the damage to Fitl could not be repaired. Thus,
the policies behind the notice requirement, to allow the seller to correct a defect, to prepare for negotiation and litigation,
and to protect against stale claims at a time beyond which an investigation can be completed, were not unfairly prejudiced by
the lack of an earlier notice to Strek. Any problem Strek may have had with the party from whom he obtained the baseball
card was a separate matter from his transaction with Fitl, and an investigation into the source of the altered card would not
have minimized Fitl's damages.
Strek represented himself as a sports card dealer at a card show in San Francisco. After Fitl expressed interest in a specific
baseball card, Strek contacted Fitl to sell him just such a card. Orand stated that a reputable dealer will stand behind what
he sells and refund the money if an item is fake or has been altered. In the context of whether a rejection of goods was made
in a reasonable amount of time, we have stated that "when there is no precise rule of law which governs, the question of
what, under the circumstances of a particular case, is a reasonable amount of time is usually a question for the jury." See
Smith v. Paoli Popcorn Co., 255 Neb. 910, 917, 587 N.W.2d 660, 664 (1999).
The district court found that it was reasonable to give Strek notice of a defect 2 years after the purchase. This finding was
not clearly erroneous. Pursuant to § 2-607(4), the burden is on the buyer to show a breach with respect to the goods
accepted. Fitl presented evidence that the baseball card was not authentic, as he had been led to believe by Strek's
representations. Strek did not refute Fitl's evidence.
CONCLUSION
 The judgment of the district court is affirmed.
AFFIRMED.

								
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