Mooting Exercise - Fact Pattern 2

Facts

The ACME Sheet Metal Company ("ACME") planned to add a new product to its line and

required new, custom-made equipment. ACME contacted Ralph Evans, who advertised himself

as an independent dealer in industrial machinery. Evans told ACME representatives that he was

a sales agent for XYZ Machinery Incorporated ("XYZ") and that he would be able to order from

XYZ, the custom-made equipment ACME required. ACME signed an agreement with Evans,

subject to confirmation by XYZ for the manufacture, sale and installation of the equipment.

ACME gave Evans a deposit for part of the price and a promissory note (ie an enforceable debt

agreement) for the remainder. Evans delivered the deposit money, the agreement and the

promissory note to XYZ. The deposit and funds were accepted as payment by XYZ and the

contract was approved by XYZ.

Delivery of the equipment was delayed beyond the time mentioned in the agreement. ACME

sent faxes to XYZ on several occasions requesting a progress report. XYZ responded to only

one of the faxes and never indicated at all that XYZ did not consider itself bound by the terms of

the agreement signed by ACME. Eventually, XYZ delivered and installed the machinery.

After a few days use, it became clear the equipment would be completely unsatisfactory and

would never perform in any way to the specifications. When ACME contacted XYZ to demand

that the machinery be repaired or replaced, XYZ said that it had no contract with ACME. As far

as XYZ was concerned, its contract was with Evans, because XYZ claimed to have a contract

only with Evans. XYZ explained that it never deals directly with end-user customers and that it

deals only with Evans. It accepts responsibility for its business dealings with Evans and

therefore denies any liability to ACME.

Exercise

ACME has sued XYZ for breach of contract on the above facts.

Counsel for the Defendant

Counsel for the defendant (XYZ) must argue the case against breach of contract in a type-written

Brief of Argument of 3-5 pages in length. The Brief of Argument must contain the information

mentioned in the previous paragraph.