Ray Williams, a resident of Georgia, contracted to sell the "slaw cabbage" to be grown on 30 acres of farmland in Georgia to Thomas Curtin, a resident of New York, who intended to resell the cabbage to cole slaw manufacturers. The expected yield was 600 to 800 tons of cabbage, and the agreed price was $136 per ton. Large cabbages are generally preferable for making cole slaw, and Curtin orally advised Williams that he desired large cabbage (i.e., 12 heads or less per 50-pound bag); this request was not, however, incorporated into the written memorandum of agreement. Earlier agreements between Williams and Curtin had called for the sale of "large cabbage." The cabbage was planted in a way to provide the best assurance possible that the cabbage would be large cabbage as requested by Curtin. As a result of poor growing conditions, most of the cabbages grown on the acreage were small; moreover, prices for cabbage were generally higher than the price at which Williams had agreed to make the sale to Curtin. Curtin inspected the cabbage during the growing season and was aware of the small size of the cabbage. He advised Williams that he wanted all of the cabbage from the 30 acres, regardless of size. Williams, however, delivered only the large cabbages to Curtin (approximately 150 tons) and sold the smaller cabbages to other buyers at a price about three times higher than the price at which he had contracted to sell cabbage to Curtin. Williams claimed that in the trade in Georgia, "slaw cabbage" referred only to large cabbage with 12 cabbage heads or less per 50-pound bag. However, the other witnesses said that the term "slaw cabbage" was seldom used, that in their experience it had never been used to define a specific cabbage size, and that it meant simply cabbage suitable for processing into cole slaw. Did trade usage support Williams's contention that he was obligated to deliver only the large cabbages?

  • CreatedJuly 16, 2014
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