553 F.2d 1222 (10th Cir. 1977)
Cargill, Incorporated is a cash merchandiser of agricultural commodities.1 Van Stafford, doing business as Stafford Elevator, owns and operates a country grain elevator in Campo, Colorado, which he and his wife run.2 Stafford's brother and son-in-law operate a separate grain elevator under the name Stafford Brothers Elevator located thirty-five to forty miles away in Keyes, Oklahoma.3
On July 23, 1973, Cargill's agent Julsonnet telephoned Stafford about purchasing wheat.4 Stafford indicated he had forty thousand bushels of wheat which he might let Cargill have and requested that a confirmation be sent for his review.5 Julsonnet prepared and mailed a confirmation addressed to Stafford Brothers Elevator in El Campo, Colorado.6 Mrs. Stafford received the letter, noted the addressee, and forwarded it unopened to Stafford Brothers, who returned it to Stafford Elevator on August 17.7
On July 31, Stafford telephoned Julsonnet to request inclusion of a protein premium in the confirmation for the first transaction and agreed during the same call to sell an additional twenty-six thousand bushels of wheat to Cargill.8 The confirmation for the second sale was correctly addressed to Stafford Elevator, but the confirmation of the contract change for the first transaction was again sent to Stafford Brothers Elevator.9
On August 21, Stafford wrote to Cargill objecting to a provision in the confirmations that gave Cargill an option to cancel and stating that the contract was void.10 Cargill's agent called Stafford on August 27 urging performance, but Stafford maintained the confirmations were void.11 After Stafford confirmed on September 6 that he would not perform, Cargill cancelled the contracts and claimed the difference between the contract prices and the September 6 market price.12 The price of wheat had risen from the end of July, reaching a high point on August 21.13 Stafford refused to pay, and Cargill brought suit for breach of the contracts.14 The trial court denied recovery on the first transaction and allowed recovery on the second, after which both parties appealed.15
Whether the confirmation for the July 23 transaction was received within a reasonable time under C.R.S. § 4-2-201(2) despite being misaddressed to Stafford Brothers Elevator?16
Under C.R.S. § 4-2-201(2), a writing in confirmation of a contract between merchants satisfies the statute of frauds if received within a reasonable time and the recipient has reason to know its contents, unless written objection is given within ten days after receipt.17
No. The trial court reviewed the evidence of the misdirection of the confirmation to Stafford Brothers Elevator and its return on August 17. It determined that the delay resulted from Cargill's erroneous addressing and that the confirmation was not received within a reasonable time under C.R.S. § 4-2-201(2).18 Mrs. Stafford acted reasonably in forwarding the incorrectly addressed letter without inquiry.19 Stafford's August 21 objection to the confirmation fell within the ten-day statutory period.20
The confirmation for the July 23 transaction was not received within a reasonable time, so the statute of frauds bars recovery on that contract.21
Whether Stafford admitted the existence of a valid contract covering the July 23 transaction under C.R.S. § 4-2-201(3)(b)?22
Under C.R.S. § 4-2-201(3)(b), the statute of frauds does not bar enforcement if the party against whom enforcement is sought admits in pleadings, testimony, or otherwise in court that a contract for sale was made.23
No. Stafford told Cargill's agent on July 23 that he might make the sale, would check the confirmation, and would sign and return it only if it looked all right.24 Stafford never signed or returned the confirmation and never admitted the existence of a valid contract in any court proceeding or testimony.25
Stafford did not admit the existence of a valid contract for the July 23 transaction, so C.R.S. § 4-2-201(3)(b) provides no basis for enforcement.26
Whether unjust enrichment entitled Cargill to recovery on the July 23 transaction?27
Unjust enrichment requires (1) a benefit conferred on the defendant by the plaintiff, (2) acceptance of the benefit by the defendant, and (3) circumstances making it inequitable for the defendant to retain the benefit without payment.28
No. Cargill performed no services for Stafford, conveyed no rights to him, and conferred no benefit on him.29 Because the July 23 contract is unenforceable under the statute of frauds, Stafford owed no legal obligation to Cargill, and allowing unjust enrichment recovery would render the statute of frauds meaningless.30
Unjust enrichment does not entitle Cargill to recovery on the July 23 transaction.31
Whether the additional terms in the Cargill confirmation for the July 31 transaction prevented formation of an enforceable contract under C.R.S. § 4-2-207?32
Under C.R.S. § 4-2-207(1), a written confirmation received within a reasonable time operates as an acceptance even if it contains additional or different terms, unless acceptance is expressly conditioned on assent to the new terms.33 Between merchants, additional terms become part of the contract unless they materially alter it, acceptance is limited to the new terms, or objection is made within a reasonable time.34
No. Stafford and Cargill are both merchants. The July 31 confirmation was received within a reasonable time, and Cargill's acceptance was not conditioned on assent to the new terms.35 The option-to-cancel provision constituted a material alteration that does not bind Stafford, but the underlying contract remains enforceable.36 The reference to N.G.F.D.A. rules, whether or not material, does not void the contract, and Stafford cannot rely on his own nonconformance to avoid liability.37
The additional terms did not prevent formation of an enforceable contract for the July 31 transaction under C.R.S. § 4-2-207.38
Whether damages for repudiation of the July 31 contract under C.R.S. § 4-2-713 should be measured from the time Cargill learned of the repudiation or from the time performance was due?39
Under C.R.S. § 4-2-713, the measure of damages for repudiation is the difference between the market price at the time when the buyer learned of the breach and the contract price.40 In anticipatory repudiation cases, this time is normally the time when performance is due, not when the buyer learns of the repudiation, unless the buyer lacks a valid reason for failing to cover within a reasonable time after learning of the repudiation.41
No. Stafford repudiated on August 21, and Cargill learned of the repudiation on August 24.42 Cargill had a reasonable time after August 24 to cover, which expired on September 6 when it cancelled the contract.43 Damages are measured from the time performance is due unless the buyer had no valid reason for not covering.44 The trial court's award based on the September 6 price stands if Cargill lacked a valid reason to forgo cover; otherwise damages are measured from the September 30 performance date.45
Damages for repudiation of the July 31 contract under C.R.S. § 4-2-713 are measured from the time performance was due, subject to the buyer's duty to cover within a reasonable time after learning of the repudiation.46