## Facts

- BMC Industries, Inc., through its Vision-Ease division, manufactured semi-finished ophthalmic lenses using an assembly-line process.
- Barth Industries, Inc. contracted to design, manufacture, and install equipment to automate BMC’s lens-production line.
- The contract originally required delivery by June 1987 and was amended to October 1987.
- Barth did not deliver by October 1987 and remained incomplete well after the amended deadline.
- BMC sued Barth for breach of contract; Barth asserted counterclaims.
- BMC also asserted promissory estoppel against Barth’s parent, Nesco, Inc., alleging an oral assurance that Nesco would ensure Barth’s completion.

## Issues

1. Whether the mixed goods-and-services contract was predominantly for goods and therefore governed by UCC Article 2.
2. Whether BMC’s post-deadline conduct waived the October 1987 delivery date under the UCC, and whether waiver required detrimental reliance.
3. Whether an alleged oral promise by Nesco to ensure Barth’s performance was enforceable under promissory estoppel or barred by the statute of frauds.
4. Whether jury instructions based on the wrong legal framework required reversal or a new trial, and what relief was appropriate.

## Decision

- Held the contract was predominantly for goods; UCC Article 2 governed.
- Held BMC waived the October 1987 delivery date through its conduct after the deadline.
- Held waiver under UCC § 2-209 did not require Barth to prove detrimental reliance.
- Vacated the judgment against Barth and remanded for a new trial because the jury was instructed under common-law principles rather than the UCC.
- Reversed as to Nesco, holding the oral assurance was an unenforceable guaranty under the statute of frauds; directed entry of judgment as a matter of law for Nesco and its dismissal.

## Legal Principles

- A mixed contract is governed by UCC Article 2 when its predominant purpose is the sale and delivery of movable goods, even if design, engineering, and installation services are included.
- Under UCC § 2-209, contractual terms (including delivery dates) may be waived by a party’s post-breach conduct.
- UCC waiver of a delivery term may be effective without proof that the other party detrimentally relied on the waiver; after waiver, performance is assessed by a “reasonable time” standard under the UCC.
- An oral promise that functions as a suretyship or guaranty obligation is subject to the statute of frauds and is unenforceable without a writing; promissory estoppel does not avoid that bar in this context.
- When a trial is conducted under an incorrect governing law and the jury is misinstructed on controlling standards, the proper remedy may be vacatur and a new trial rather than judgment for the losing party if fact issues remain.

## Conclusion

The court classified the industrial automation agreement as a UCC Article 2 transaction, treated BMC’s continued cooperation after the missed deadline as a waiver of the specified delivery date without requiring detrimental reliance, ordered a new trial due to incorrect jury instructions, and rejected promissory-estoppel liability against the parent company because the alleged oral guaranty was barred by the statute of frauds.


BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322 (11th Cir. 1998)