Schenectady Steel Co. v. Bruno Trimpoli General Construction Co.

GREENBLOTT, J.

(concurring). I concur. I do" not disagree with the conclusions arrived at on the basis of common-law principles, but I feel that the trial court was correct in applying the Uniform Commercial Code. I find no clear exemption in that act to “ service ” or “ construction ” contracts where the supply of 1 ‘ goods ’ ’ is an integral aspect of such a contract, and, in any event, there does not appear to be any sound reason for holding the code inapplicable to the “ goods ” portion of a contract where it is readily separable from the “ service ” or “ construction ” portions. Bonald Anderson, in his commentaries on section 2-102 of the code, states: “When the supplier of the services also supplies materials with which to perform the services or consumes materials in the course of rendering the services ”, it is a mere service contract ungoverned by the code (1 Anderson, Uniform Commercial Code [2d ed.], §§ 2-102:5, 209). In the case at bar, the plaintiff had two distinct obligations: to furnish structural steel according to stated specifications, and to erect such steel. This steel, applying Anderson’s test, was not material “ with which ” a service was performed, nor was it consumed. Bather, it was material upon which services were to be. subsequently performed, and the fact that plaintiff rather than another had contracted to perform such services should not relieve him of the obligation to furnish the *239 “goods” contracted for in compliance with .the code. As Anderson himself recognizes, “it is probable that a goods-services transaction will come to be subjected to * * * the Code insofar as the contractor’s obligations with respect to the goods themselves are involved, at least where the goods involved could have been purchased in the general market and used by the [customer] ” (1 Anderson, supra, p. 209). 1 This approach, in my view, aptly describes the situation before us, and it has begun to be recognized as correct by the courts of other States. In Mercanti v. Persson ( 160 Conn. 468 ), the Supreme Court of Connecticut applied the code to a contract to build and install a mast on a yacht. In my view, the obligation to furnish the mast for subsequent installation in Mercanti is analogous to the defendant’s duty here to furnish structural steel for subsequent erection. Since plaintiff failed to provide adequate assurances of performance within 30 days, as required by section 2-609, the defendant was entitled to repudiate the contract.

I am in agreement with the majority’s conclusion reducing the damages awarded on the counterclaim.

. Mr. Justice Cooke suggests that the “goods” could not have been purchased in the general market, and supports this assertion by reference to the plaintiff’s failure to do so. This reasoning overlooks the fact that plaintiff was responsible for supplying the goods, and if it was necessary for plaintiff to fabricate the steel out of its component elements, it would then be in no different position than any other manufacturer. Moreover, it does not appear why plaintiff was “unable” to obtain the steel. Perhaps plaintiff was able to procure it in its final form, but was unwilling to pay the prevailing market price and therefore chose to manufacture the structural parts. It is worthy of note that plaintiff’s successor on the subcontract was capable of procuring the steel in the “general market”.