## Facts

- Unlaub Company, Inc., an Oklahoma corporation, agreed to sell coal screen units to Paul Rees Coal Company for $67,721, with a 20% down payment ($13,544) and a remaining balance of $54,177, plus applicable taxes.
- The contract required the buyer to pick up the units F.O.B. Durand, Michigan, after receiving notice from Unlaub that the goods were available.
- Simplicity Engineering Company manufactured the units in Michigan.
- Sam Sexton, Jr., an Arkansas resident and president of the coal company, executed a written personal guaranty of the coal company’s performance and payment obligations under the contract.
- The coal company paid the down payment but did not pay the remaining balance, did not pick up the units after notice of availability, and did not effectively reject the goods.
- Unlaub sued Sexton in federal district court (diversity) to recover the unpaid balance plus interest, relying on Sexton’s guaranty.
- The district court granted summary judgment for Unlaub, and Sexton appealed.

## Issues

1. Whether Unlaub’s notice that the goods were ready for pickup at the contractually specified F.O.B. location constituted a proper tender of delivery under the contract and the UCC.
2. Whether the buyer’s failure to pick up, pay for, or effectively reject the goods permitted the seller to recover the contract price under UCC § 2-709.
3. Whether Sexton’s written personal guaranty made him liable for the unpaid balance once the coal company’s obligation to pay was established.
4. Whether Sexton’s jurisdictional and related defenses (including assertions tied to Unlaub’s ability to sue in Arkansas) barred the action or recovery.

## Decision

- The Eighth Circuit affirmed summary judgment for Unlaub.
- The court held Unlaub properly tendered delivery by placing conforming goods at the buyer’s disposition at the agreed F.O.B. point and giving notice reasonably necessary to enable pickup.
- The buyer’s failure to make an effective rejection after notice and opportunity to act supported treating the transaction as accepted for purposes of an action for the price.
- Unlaub was entitled to recover the unpaid contract balance ($54,177) plus interest.
- Sexton, as personal guarantor of full performance and payment, was liable for the coal company’s unpaid obligations.
- Sexton’s jurisdictional and ancillary defenses were rejected as meritless on the record presented.

## Legal Principles

- Under UCC tender rules, a seller tenders delivery by putting and holding conforming goods at the buyer’s disposition at the agreed place and providing any notification reasonably necessary for the buyer to take delivery.
- For an F.O.B. place-of-pickup arrangement, notice that goods are available at the designated location can satisfy the seller’s tender obligation.
- A buyer’s failure to make an effective rejection after notice and a reasonable opportunity to respond can support seller remedies tied to acceptance.
- Under UCC § 2-709, a seller may recover the contract price when the buyer wrongfully fails to pay for goods in circumstances permitting an action for the price.
- A written guaranty of performance and payment renders the guarantor liable to the extent the principal obligor’s underlying payment duty is enforceable.
- Summary judgment is proper where the material facts (contract terms, guaranty, tender notice, and nonpayment/nonrejection) are not subject to a genuine dispute and the movant is entitled to judgment as a matter of law.

## Conclusion

The Eighth Circuit upheld judgment for the seller because notice that the goods were available at the agreed F.O.B. pickup point constituted proper tender, the buyer neither paid nor effectively rejected the goods, and the guarantor’s written promise made him liable for the unpaid contract price plus interest.


Unlaub Co. v. Sexton, 568 F.2d 72 (8th Cir. 1977)