{ "id": 5405145, "name": "BIO-TECH PHARMACAL, INC. v. INTERNATIONAL BUSINESS CONNECTIONS, LLC", "name_abbreviation": "Bio-Tech Pharmacal, Inc. v. International Business Connections, LLC", "decision_date": "2004-05-19", "docket_number": "CA 03-46", "first_page": "220", "last_page": "229", "citations": [ { "type": "official", "cite": "86 Ark. App. 220" }, { "type": "parallel", "cite": "184 S.W.3d 447" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 4-2-209", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2001, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "70 Ark. App. 336", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142175 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/70/0336-01" ] }, { "cite": "338 Ark. 65", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243531 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0065-01" ] }, { "cite": "Ark. Code Ann. \u00a7 4-2-208", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 2001, "pin_cites": [ { "page": "(1)" }, { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 4-2-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2001, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 4-2-206", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 2001, "pin_cites": [ { "page": "(l)(a) and (b)" }, { "page": "(l)(a)" } ], "opinion_index": 0 }, { "cite": "235 Ark. 679", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684721 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/235/0679-01" ] }, { "cite": "309 Ark. 139", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906075 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0139-01" ] }, { "cite": "347 Ark. 260", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683467 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "citing Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992)" }, { "parenthetical": "citing Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992)" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0260-01" ] }, { "cite": "4 Ark. App. 362", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142544 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/4/0362-01" ] } ], "analysis": { "cardinality": 681, "char_count": 14456, "ocr_confidence": 0.774, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15904653128425633 }, "sha256": "961db258bb419cf6ea1f63c5c123b0c7a9080a9aba99d60f64cac0e22c33f20f", "simhash": "1:bf6c9139fb47add6", "word_count": 2318 }, "last_updated": "2023-07-14T19:35:50.829950+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Vaught and Crabtree, JJ., agree." ], "parties": [ "BIO-TECH PHARMACAL, INC. v. INTERNATIONAL BUSINESS CONNECTIONS, LLC" ], "opinions": [ { "text": "Sam Bird, Judge.\nFollowing a bench trial in Washington udge. court awarded appellee $12,951.87 on its complaint against appellant to recover for goods sold. Appellant argues on appeal that the trial judge erred in 1) denying its motion for a directed verdict, and 2) finding that it waived the right to rely on a contractual term that required appellee to immediately confirm all orders by fax or email. Finding no error, we affirm.\nAppellant is a manufacturer of nutritional supplements. In September 1999, it began purchasing raw materials from appellee, which operated through its president, Detleff Fuhrmann. Over a period of four months, appellant placed approximately seventeen orders with appellee.\nAccording to Detleff Fuhrmann, the parties transacted most of their business by telephone. He.explained that he was in almost daily telephone contact with appellant and that if he could locate material that appellant was interested in purchasing, he would telephone one of appellant\u2019s personnel and advise of the material\u2019s availability and price. If agreeable, appellant would then issue a purchase order to appellee. Each purchase order would recite the material being ordered, the quantity, the unit price, the total price, appellant\u2019s shipping address, and six \u201cTerms of Contract,\u201d including the following: Order/price confirmation w/ship date must be faxed/e-mailed immediately. Upon receiving the purchase order, appellee would order the material from its supplier and pay for it in advance. When the material became available, it would be shipped to appellant, and appellee would send appellant an invoice that referenced appellant\u2019s purchase order number. It is undisputed that appellee never faxed or emailed a confirmation to appellant on any order. According to Fuhrmann, confirmations were handled by telephone.\nDespite the lack of written confirmation, appellant received and paid for several orders from appellee without protest or complaint. However, in January and February 2000, appellant attempted to cancel numerous orders by writing \u201cCANCEL\u201d across the orders and faxing them to appellee. During this same period, appellant also requested return authorizations for some of the materials that it had received. All but one of these return requests listed \u201cInadequate Purchase Order Confirmation\u201d as a reason for return.\nFuhrmann testified that he was surprised to receive the cancellation notices and return requests because he had never had any previous complaints from appellant. He told appellant that he did not want to accept a return of the goods that had already been shipped, and he asked appellant to pay for those goods. At one point appellant paid appellee $8,000, which apparently covered only part of the outstanding balance. No further payments were made.\nOn August 10, 2000, appellee sued appellant to collect the balance due on three purchase orders. Appellant defended on the ground that appellee had not confirmed the purchase orders as required. Following a bench trial, the circuit judge entered a verdict in appellee\u2019s favor for $12,951.87. Appellant now appeals from that verdict.\nWe first address appellant\u2019s argument that the trial court erred in denying its motion for a directed verdict. A party in a nonjury trial may challenge the sufficiency of the evidence by moving to dismiss the opposing party\u2019s claim for relief. See Ark. R. Civ. P. 50(a) (2004). When a party moves for a \u201cdirected verdict\u201d or dismissal in a bench trial, it is the duty of the trial court to consider whether the plaintiffs evidence, given its strongest probative force, presents a prima facie case. See Henley\u2019s Wholesale Meats v. Walt Bennett Ford, 4 Ark. App. 362, 631 S.W.2d 316 (1982). It is not proper for the court to weigh the facts at the time the plaintiff completes his case, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted. Id. On appeal, in determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict was sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001) (citing Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992)).\nAt the close of appellee\u2019s evidence, appellant sought a directed verdict on two of the purchase orders, arguing that appellee\u2019s failure to fax or email a confirmation of those orders meant that appellee had not \u201caccepted\u201d the purchase order \u201coffers\u201d in accordance with their terms, and thus no contract was formed. The trial court denied the motion, ruling that a question remained as to whether appellee had the right to rely on the parties\u2019 course of dealing in not faxing or emailing a confirmation. Ultimately, the court found that a contract had been formed as to the two orders.\nAppellant argues on appeal, as it did below, that its purchase orders were offers and that they required acceptance by one means only \u2014 faxing or emailing a confirmation; thus, when appellee failed to accept in the required manner, no contract was formed. We hold that appellant was not entitled to a directed verdict on this point.\nWe note first that it is true that a purchase order is generally considered an offer. See Smyth Worldwide Movers v. Little Rock Packing Co., 235 Ark. 679, 361 S.W.2d 534 (1962); 2 Ronald Anderson Uniform Commercial Code \u00a7\u00a7 2-204:14; 2-206:37 (3d ed. 1997). However, even if we consider appellants\u2019 purchase orders to be offers, we disagree with appellant that they clearly invited acceptance by only one means. Under the Uniform Commercial Code, an offer may generally be accepted in any manner and by any medium reasonable in the circumstances. See Ark. Code Ann. \u00a7 4-2-206(l)(a) and (b) (Repl. 2001); Anderson, supra, at \u00a7 2-206:44. However, as appellant points out, an offeror may specify a particular manner in which the offer may be accepted. Anderson, supra, at \u00a7 2-206:59. When that occurs, the offeree must comply in the manner specified in order to accept the offer. See Anderson, supra, at \u00a7 2-206:62. See also Ark. Code Ann. \u00a7 4-2-206(l)(a) (Repl. 2001), which reads:\n(1) Unless otherwise unambiguously indicated by the language or circumstances:\n(a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances [.]\nThe purpose of this statutory language is to make it clear that any reasonable manner of acceptance is intended to be regarded as available unless the offeror has made it quite clear that it will not be acceptable. Ark. Code Ann. \u00a7 4-2-206, Comment 1 (Repl. 1995).\nThe confirmation requirement contained in appellant\u2019s purchase orders is, by the orders\u2019 express language, a term of the parties\u2019 contract. It is not unambiguously set out as a means of accepting an offer. In fact, nothing is said in the purchase orders regarding a specific means of acceptance. Therefore, we cannot say that the purchase orders expressly require acceptance by only one means.\nFurther, purchase orders may sometimes be considered an acceptance rather than an offer. See Anderson, supra, at \u00a7 2-206:40. The circumstances of this case would allow for that possibility, given the parties\u2019 course of dealing. Fuhrmann testified that he was in constant telephone contact with appellant and that prior to appellant\u2019s issuance of a purchase order, he provided appellant with information about the price and availability of the materials appellant sought. Thus, it is possible that appellant\u2019s purchase order actually operated as an acceptance of appellee\u2019s offer. It is also possible that appellant\u2019s purchase order was simply confirmation of a contract that had already been made. The UCC contemplates that parties may enter into oral agreements that are subsequently confirmed in writing. Ark. Code Ann. \u00a7 4-2-201(2) (Kepi. 2001). Appellant\u2019s purchase orders identified the product to be shipped and contained the quantity, price, terms of payment, and shipping information. Further, the orders contained several \u201cterms of contract.\u201d Therefore, it would be reasonable to infer, given the parties\u2019 regular course of dealings, that they had already made an oral contract and that Fuhrmann was simply awaiting confirmation in the form of appellant\u2019s purchase order before obtaining the materials.\nIn light of these reasonable inferences, which our standard of review requires us to consider, we conclude that the trial court did not err in refusing to grant a directed verdict on the ground that no contract had been formed.\nAppellant also argues that, in denying the directed verdict, the trial judge wrongly considered the parties\u2019 course of dealing and should only have considered the language of the purchase orders in determining whether a contract was formed. Appellant cites Ark. Code Ann. \u00a7 4-2-208 (Repl. 2001), which provides that the express terms of the agreement and the parties\u2019 course of performance shall be construed whenever reasonable as consistent with each other, but when such a construction would be unreasonable, the express terms control course of performance. Appellant argues that, in this case, the purchase orders\u2019 express terms should govern over course of performance.\nAs we have already determined, the express terms of the purchase orders do not clearly require written confirmation as a prerequisite to the formation of a contract. Thus, the terms are not so clear that the court should have disregarded the parties\u2019 course of performance. Under certain circumstances, course of performance is relevant in determining the meaning of an agreement for the sale of goods. See Ark. Code Ann. \u00a7 4-2-208(1) (Repl. 2001). The comment to section 4-2-208 recognizes that the parties themselves know best what they have meant by their words of agreement and \u201ctheir action under that agreement is the best indication of what that meaning was.\u201d Additionally, the parties\u2019 course of performance is relevant to the question of whether written confirmation had been waived. See Anderson, supra, at \u00a7 2-208:24 and :29.\nWhen these premises are considered, we cannot say that the trial court erred in denying appellant\u2019s motion for a directed verdict.\nAppellant argues next that the trial court erred in ruling that it waived the confirmation requirement. Appellant\u2019s first contention is that the purchase orders were contracts \u201cindependent and enforceable on their own terms\u201d and were \u201cseparate and distinct transactions\u201d; thus, the trial court erred in considering appellant\u2019s actions with regard to one purchase order as relevant to any other purchase order. This argument ignores the clear language of Ark. Code Ann. \u00a7 4-2-208(1), which reads:\nWhere the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.\n(Emphasis added.) In the case at bar, there were repeated occasions for performance over the course of several months, during which appellee persistently failed to confirm appellant\u2019s orders by fax or email, and during which appellant acquiesced without objecting to such failure. This state of facts fits squarely within the above-quoted statute.\nAppellant also argues that the facts generally do not support a finding of waiver. Waiver is the voluntary abandonment or surrender by a capable person of a right known to him to exist, with the intent that he shall forever be deprived of its benefits, and it may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). As to this particular argument, we are reviewing the trial court\u2019s findings of fact, which should not be reversed unless clearly erroneous. See Beal Bank v. Thornton, 70 Ark. App. 336, 19 S.W.3d 48 (2000). We do not believe that the trial court\u2019s finding of waiver is clearly erroneous.\nIt is undisputed that appellant accepted and paid for several orders that appellee shipped in October and December 1999, despite the fact that appellee had not complied with the confirmation requirement. According to Fuhrmann, the parties were in daily telephone contact and confirmations were accomplished by telephone, without protest by appellant. There was also testimony by appellant\u2019s purchasing agent, Trail Benedict, that, although he generally required written confirmation of orders, he had made some exceptions to that rule and initially made an exception with appellee. Additionally, prior to appellant\u2019s cancellation of orders in January and February 2000, Fuhrmann was never notified that any shipments were unacceptable for failure to fax or email a confirmation order. Finally, as the trial court found, there is no evidence that appellant ever retracted its waiver pursuant to Ark. Code Ann. \u00a7 4-2-209(5) (Repl. 2001), which reads:\nA party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on-the waiver.\nIn light of the foregoing, we hold that the trial court\u2019s finding of waiver is not clearly erroneous.\nAffirmed.\nVaught and Crabtree, JJ., agree.\nAlthough numerous orders were canceled by appellant, appellee was able to prevent a loss on some orders by making a timely cancellation with its own suppliers. Further, appellee applied the $8,000 it received from appellant to reduce the total balance due. Thus, appellee sought payment at trial on only three purchase orders.\nAppellant admitted that a contract had been formed as to the third purchase order.\nThe statute provides that such a writing takes the oral agreement out of the statute of frauds.", "type": "majority", "author": "Sam Bird, Judge." } ], "attorneys": [ "Edward Niles Coe, Jr., for appellant.", "Brenda Austin, Ltd., by: Brenda Horn Austin, for appellee." ], "corrections": "", "head_matter": "BIO-TECH PHARMACAL, INC. v. INTERNATIONAL BUSINESS CONNECTIONS, LLC\nCA 03-46\n184 S.W.3d 447\nCourt of Appeals of Arkansas Division II\nOpinion delivered May 19, 2004\nEdward Niles Coe, Jr., for appellant.\nBrenda Austin, Ltd., by: Brenda Horn Austin, for appellee." }, "file_name": "0220-01", "first_page_order": 964, "last_page_order": 973 }