Fact Pattern

ACME Construction contracted with Custom Welds to fabricate an iron gazebo for $35,000

ACME was to take delivery of the gazebo at the Custom Welds factory and assemble it on location at the luxury house it was constructing. However, ACME failed to take delivery of the iron gazebo, refused to accept shipment, and refused to pay the contract price.

Custom Welds sues ACME for the full price of the contract: $35,000. At trial, ACME argues that Custom Welds is not entitled to the entire contract amount because it could've sold the gazebo to someone else, but it made no reasonable effort to sell it. Custom Welds testifies that this gazebo was specially designed according to ACME's specifications and that it's unfamiliar with the gazebo market so any efforts to resell it would've been unavailing.

ACME calls an expert who testifies that the gazebo has a current fair market value of $30,000. During cross examination the ACME expert testifies that fair market value at the time of tender was $25,000 but has since increased due to a rise in the cost of iron.

During trial, Custom Welds receives an offer on the gazebo for $20,000. The potential purchaser testifies that the unique design of the gazebo requires retrofits that would cost approximately $5,000. ACME argues that the offer is unreasonable and Custom Weld could obtain at least $30,000 if it had made reasonable efforts to find a purchaser earlier.

Custom Welds is not seeking incidental damages.

The parties rest their case with the $20,000 offer outstanding - i.e. Custom Welds has not accepted the offer.

Analysis

What should happen? Who wins? What damages and/or remedies should be awarded? Why? Explain your answer using the resources below and any found in the textbook or supplemental materials.

Resources

UCC

1-305

2-708

2-709

Caselaw

Vagabond Container, Inc. v. City of Miami Beach, 356 So. 2d 1266 (Fla. 3d DCA 1978)

Royal Jones & Assocs., Inc. v. First Thermal Systems, Inc., 566 So. 2d 853 (Fla. 1st DCA 1990)