C. R. Fedrick, Inc. v. Borg-Warner Corporation

552 F.2d 852 21 UCC Rep.Serv. 26 C. R. FEDRICK, INC., Plaintiff-Appellant, v. BORG-WARNER CORPORATION, Defendant-Appellee. No. 75-1424. United States Court of Appeals, Ninth Circuit. Feb. 22, 1977. Rehearing Denied April 14 and 20, 1977. 1 Edward K. Allison, Ehrlich, Allison & Rovens, San Francisco, Cal., for plaintiff-appellant. 2 Lawrence W. Jordan, Jr., Cotton, Seligman & Ray, San Francisco, Cal., for defendant-appellee. 3 Appeal from the United States District Court for the Northern District of California. 4 Before DUNIWAY and WALLACE, Circuit Judges, and EAST, District Judge. * OPINION EAST, District Judge: 5 The appellant (Fedrick) appeals from a summary judgment in favor of the appellee (Borg) entered by the District Court on the several grounds that the provision of the Statute of Frauds, California Commercial Code (C.C.C.) § 2201(1) and (2), barred Fedrick's action against Borg for the breach of an alleged oral bid or contract to supply and sell certain motor driven pumping units (pumps), and relief could not be granted under any theory of equitable estoppel. We affirm. 6 Fedrick raises two issues on review. Did the District Court err in determining that: 7…

The appellant (Fedrick) appeals from a summary judgment in favor of the appellee (Borg) entered by the District Court on the several grounds that the provision of the Statute of Frauds, California Commercial Code (C.C.C.) § 2201(1) and (2), barred Fed-rick’s action against Borg for the breach of an alleged oral bid or contract to supply and sell certain motor driven pumping units (pumps), and relief could not be granted under any theory of equitable estoppel. We affirm.

Fedrick raises two issues on review. Did the District Court err in determining that:

Fedrick originally instituted the proceedings in the Superior Court of California for the County of Marin. Borg timely removed the action to the District Court pursuant to 28 U.S.C. § 1446 and moved for summary judgment. Jurisdiction in the District Court and in this court is established.

The undisputed facts pertinent to review are:

Fedrick had prepared a bid as the prime contractor on a construction project under the auspices of the United States Bureau of Reclamation (Bureau). At 9:50 a. m. on May 30, 1974, approximately ten minutes before the time fixed for the submission of bids on the project and after Fedrick…

dissenting:

I respectfully dissent.

This appeal requires us to decide whether the district judge was correct in granting a motion for summary judgment. There were two central issues: formation of the contract and application of the Statute of Frauds.

The district court correctly determined that a summary judgment was not appropriate on the formation issue. The key question was whether Borg’s offer was revocable, because if it was not, there was evidence showing that Fedrick accepted the offer and a contract was thereby formed. 1 Under the California law governing the construction industry, a subcontractor’s offer to a general contractor, who reasonably and foreseeably relies on that offer in making his prime bid, is irrevocable until the general contractor has had a reasonable time after being awarded the prime contract to accept the offer. 2 Drennan v. Star Paving Co., 51 Cal.2d 409 , 333 P.2d 757 (1958). Even though there is no considera *859 tion for the irrevocability of the offer “in the sense of something that is bargained-for and given in exchange,” the general contractor’s reasonable reliance on the implied “subsidiary promise” not to revoke serves to hold the offeror…

(concurring):

I concur because I believe that, when the California Legislature adopted California Commercial Code § 2201, it was providing a special statutory method of alleviating at least to some extent, the hardship that can be caused by the Statute of Frauds in cases to which § 2201 applies. Therefore, the decisions of the Supreme Court of California and the California Courts of Appeal which have established judicial rules mitigating the hardships caused by the Statute of Frauds should not be applied in a case in which § 2201 applies. I know of no reason why the California Legislature cannot provide a substitute for the judicially created mitigating rules, and think that that is what the California Legislature has done. I think that this is the essence of what Judge Renfrew was holding when he concluded that the California courts would probably apply the decision of the Arizona court in the Tiffany case, which deals with the comparable Arizona statute.