## Facts

- A textile seller contracted to sell 74,077 yards of fabric to a textile buyer; the buyer rejected about 36,000 yards after delivery.
- The seller treated the rejection as wrongful nonacceptance and resold most of the rejected fabric to another firm at \$0.925 per yard, with the remainder sold at similar prices.
- The seller did not notify the buyer of its intention to resell the goods.
- After a nonjury trial, the court awarded the seller \$4,584.50, calculated as 12.5 cents per yard on the rejected goods, plus interest from June 15, 1977, using U.C.C. § 2-708(1)’s market-price measure rather than U.C.C. § 2-706’s resale remedy.
- The buyer moved post-judgment to set aside the damages award, arguing the wrong damages measure was used.

## Issues

1. When a seller resells rejected goods without giving the notice contemplated by U.C.C. § 2-706, is the seller barred from recovering damages under U.C.C. § 2-708(1) based on market price?
2. Does introducing resale-price evidence constitute an “election of remedies” that confines the seller to U.C.C. § 2-706 and precludes recovery under U.C.C. § 2-708(1)?

## Decision

- The court denied the buyer’s motion to set aside the judgment.
- The court held that the seller’s failure to give U.C.C. § 2-706 resale notice did not prevent recovery under U.C.C. § 2-708(1) where market price at the time and place for tender was proven.
- The court rejected the claim that the seller had elected the U.C.C. § 2-706 remedy merely by reselling and presenting resale-price evidence.
- The court concluded the original damages award rested on proof of market price, with the resale price used as evidence of that market price, not as the basis for a U.C.C. § 2-706 calculation.

## Legal Principles

- U.C.C. § 2-706 imposes conditions (including notice of intent to resell for a private sale) only when the seller seeks resale-based damages under that section.
- U.C.C. § 2-708(1) allows damages for nonacceptance measured by the difference between contract price and market price at the time and place for tender (plus incidental damages, less expenses saved), and does not require resale notice.
- A subsequent resale price may be admissible as evidence of market price for purposes of U.C.C. § 2-708(1).
- Reselling goods to mitigate and offering resale evidence does not, by itself, bind the seller to U.C.C. § 2-706 or bar reliance on U.C.C. § 2-708(1) when market price is established.

## Conclusion

The court left the seller’s judgment intact, holding that lack of U.C.C. § 2-706 resale notice did not foreclose market-price damages under U.C.C. § 2-708(1) and that resale-price proof did not amount to an election that restricted the seller to the resale remedy.


B & R Textile Corp. v. Paul Rothman Indus. Ltd., 101 Misc. 2d 98, 420 N.Y.S.2d 609 (Civ. Ct. N.Y.C. 1979)