DF Activities Corp v. Brown

In November, Plaintiff’s agent negotiated with Defendant buy a Frank Lloyd Wright chair. During that conversation, Plaintiff alleges Defendant agreed to sell the chair to Plaintiff for $60K in two equal installments. In early December, Plaintiff sent Defendant a letter confirming the agreement. Shortly thereafter, Plaintiff sent a check. Two weeks later Defendant returned the letter and the check, with the following note: “Since I did not hear from you until December and I spoke with you the middle of November I have made other arrangements.” Defendant later sold the chair for $198K. Plaintiff sued for the difference. Defendant moved to dismiss under the Section:2-201 of the Uniform Commercial Code (UCC). Attached to the motion to dismiss was an affidavit by Defendant that she had never agreed to sell the chair to Plaintiff and the she did not recollect the conversation with Plaintiff. In addition to the affidavit, there was a letter from Defendant to Plaintiff withdrawing the offer to sell the chair in Sept. and a letter from Plaintiff to Defendant withdrawing the offer to buy in October. Plaintiff appeals, alleging that the case is in the exception where “the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made.” But this does not refer to the handwritten note. Plaintiff argues that if he could depose the Defendant he could force the truth from her: that she had agreed to sell the chair in November.