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Martin Silver is a practicing attorney with offices in Hauppauge, N.Y. He was a flooring installer before and during the time he went to law school and has since represented numerous industry people and companies. To contact him, call 631-435-0700.



7/12/2009
11:34:29 AM 
Date required: 'At once'

What does "at once" mean in the carpet industry? This was the question before a state court in the case that we'll look at today.

In December 2002, presumably after negotiations, a carpet dealer- who was later to become the defendant- entered into a contract with a developer. The dealer agreed to furnish and install 7,000 square yards of carpet in an apartment building the developer had under construction. At the time of contracting, the developer could not give the dealer an exact installation date.

The dealer, assuming he would be able to obtain sufficient notice, did not immediately order the carpet. There is no mention in the decision as to whether or not the court felt this decision was or was not "reasonable."

On Jan. 29, 2004- over one year after the contract was signed- the developer advised the dealer the carpet installation was to begin on Feb. 15, 2009.

The dealer admitted receipt of this letter on Feb. 1. He then immediately contacted an agent who represented the mill, which later became the plaintiff in this case. This mill, however, did not have its own manufacturing facilities but rather contracted with another carpet manufacturer.

The agent, on that same day, went to the dealer where he was shown a sample and asked if he could copy its texture and color. He immediately called the mill in Chattanooga, Tenn., and put the question to them. They stated the carpet would have to be specially dyed, and they could fill the order if the colors could be matched.

The agent ordered the carpet from the mill on rush order. He told the dealer it would take a "week to 10 days."

The dealer gave the agent his signed purchase order for the job. This purchase order called for 7,000 square yards of carpet in two specific colors and contained, printed upon it, the words "Date Required." In the blank space next to this the clerk wrote in "at once." The purchase order, in addition to the above, also contained the written words "w/ letter of FHA Approved."

According to the decision, after receiving the signed purchase order, the mill obtained a credit approval for the dealer and sent it's own order to the carpet finishers in Dalton. The manufacturing records of the finishers indicate the order was completed in mid March. This was apparently not good enough.

At the end of February, the developer, claiming the dealer, by not starting installation on Feb. 15, breached the contract, cancelled his agreement with the dealer.

On March 14, the dealer was notified by the mill that the carpet was ready. He responded that it was no longer needed and had in fact been cancelled. On April 3, the mill's attorneys notified the dealer he had breached the contract and the mill intended to resell the goods at a private sale and hold the dealer responsible for damages. On April 10, the president of the mill wrote the dealer a similar letter.

The mill then proceeded to sell most of the carpet, which it claimed was identified as that carpet made specifically for the contract between itself and the dealer.

A trial was held, without a jury, after which the presiding judge found the mill was entitled to receive the sum of $35,000- "the difference between the contract price of the carpet and the resale price of the carpet saved because of the dealer's breach. The trial court had determined the time taken for manufacture was not unreasonably long, and, in the carpet industry at least, did not violate the term "at once."



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Transmitted: 11/22/2017
9:06:54 PM

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