Neri v. Retail Marine Corp.; (Ct. of Appeals of NY, 1972); CB 51; Notes 9
- Facts: Neri ordered special boat from Retail Marine, cost $12,587.40. P made deposit of $4,250. 6 days later, P repudiates (went into hospital, couldn’t pay). Boat was already ordered and delivered from manufacturer. P asked for deposit back, D refused. 4 months later, D sold boat for same price.
- Issue: Trial court awarded $500 to D (difference between K price and market price). Was this correct?
- Holding: No. Should have applied § 2-708(2). P are entitled to deposit ($4,250) minus offset to D of $3,253 ($2,579 in lost profits + $674 incidental damages). D is a lost volume seller, could have sold 2 boats in that time.
- Rule: § 2-708(2).
- Commentary: Trial court went so wrong b/c were not used to UCC.
- Hypo: if it was a custom boat that could not have been resold, seller can sell scrap under § 2-704(2), and then recover K price plus any costs of selling scrap.
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