## Facts

- F&P Builders agreed to purchase construction materials from Lowe’s of Texas, Inc.
- Lowe’s delivered the materials, and F&P Builders accepted them.
- F&P Builders later became unable to pay for the materials.
- After defaulting on payment, F&P Builders asked to return the materials and asked Lowe’s to come pick them up.
- Lowe’s refused to accept the return or retrieve the materials and sought summary judgment for the unpaid price.
- The trial court granted summary judgment for Lowe’s, and F&P Builders appealed, arguing Lowe’s had a duty to mitigate by accepting the return and picking up the goods.

## Issues

1. Whether a seller that delivered goods the buyer accepted must, as mitigation, accept the buyer’s tender back of the goods and retrieve them from the buyer in order to recover the contract price.
2. Whether the buyer’s mitigation argument raises a genuine issue of material fact sufficient to defeat the seller’s summary judgment claim for the unpaid price of accepted goods.

## Decision

- The court of appeals affirmed the trial court’s summary judgment for Lowe’s.
- The court held Lowe’s had no legal duty to mitigate damages by accepting the return of the materials and picking them up after F&P Builders had accepted them.
- The court held F&P Builders’ mitigation theory did not create a fact issue and therefore did not bar summary judgment for the price.

## Legal Principles

- When a buyer accepts goods and then fails to pay, the seller may pursue the UCC price remedy for goods accepted rather than treating the sale as undone.
- The duty to mitigate does not require the nonbreaching party to accept the breaching party’s proposed substitute performance or to surrender the remedy the law allows.
- A buyer’s inability to pay, coupled with an offer to return accepted goods, does not by itself require the seller to retake the goods or limit the seller’s right to recover the agreed price.
- On summary judgment, a defense fails as a matter of law when it rests on a mitigation obligation the law does not impose; such a defense does not raise a genuine issue of material fact.

## Conclusion

F&P Builders accepted construction materials delivered by Lowe’s but later could not pay and tried to return the goods. The Dallas Court of Appeals affirmed summary judgment for Lowe’s, holding that mitigation did not require the seller to take back and retrieve accepted goods, and Lowe’s could recover the unpaid contract price.


F&P Builders v. Lowe's of Texas, Inc., 786 S.W.2d 502 (1990)