concurring in part and concurring in result in part.
I readily subscribe to the majority's holding that the confirming letter signed by Mr. Gilbert on behalf of Noble Roman's clearly reflects that Multifoods was contemplated as the purchaser rather than Noble Roman's. Furthermore, other than with possible respect to printing prep charges,5 Noble Roman's was undertaking no financial obligation with regard to boxes manufactured by Pizza Boxes. In context then, Pizza Boxes could have protected itself by entering into a clear-cut contract with Multifoods rather than enter into a purported contract with Noble Roman's. It did not do so.
However, I diverge from the majority position as to the nature of the. arrange*1101ment evidenced by the November 1 letter. It is not a "requirements contract." The November 1 letter states that it "confirm[s] the following order." The order following specifies that the "Quantity: [is for] 2,500,000 [pizza slice boxes]."
The letter does not measure the quantity by the "requirements of the buyer" nor is there a "stated estimate" of the quantity contemplated by the arrangement, as set forth in I.C. § 26-1-2-806. The quantity set forth in the letter confirmed by Mr. Gilbert was unrelated to the actual or anticipated needs of Noble Roman's. For this reason I do not view the November 1 letter to be a requirements contract. Indiana-American Water Co. v. Town of Seelyville, 698 N.E.2d 1255 (Ind.Ct.App.1998); 67 AM.JUR.2d Sales § 222 (2003).
Rather, the November 1 confirming letter, if not an actual order for 2,500,000 boxes, is an indefinite quantities agreement. If that agreement did not contain a requirement that Noble Roman's "purchase a guaranteed minimum quantity" from Pizza Boxes it would be illusory and unenforceable. Indiana-American Water Co., 698 N.E.2d at 1260. However, the letter appears to order 2,500,000 boxes which may well be translated into the "minimum" quantity to be manufactured and delivered to Multifoods.
Nevertheless, the dealings of the parties reflect that although the project calling for clamshell boxes for pizza slices to be sold by Noble Roman's franchisees was new, as per Mr. Gilbert the "[eJstimated usage at this stage is from 400,000 to a million units per year to start." Appellant's App. at 184. The discrepancy between the 2,500,-000 quantity set forth in the letter itself and the 400,000 to a million units estimated by Mr. Gilbert and communicated to Mr. Rosenberg as a starting minimum for the first year, at most creates an ambigui-tiy as to a guaranteed minimum quantity required by an indefinite quantities contract.
Even if it were to be determined that neither the stated 2,500,000 quantity nor Mr. Gilbert's first year estimate of usage constitutes a guaranteed minimum quantity to be provided by Pizza Boxes, and that therefore the agreement between Pizza Boxes and Noble Roman's was otherwise unenforceable, Noble Roman's is bound by its concession as to liability for the printing prep charges.
Be that as it may, and without reference to whether the letter of November 1, 2002 is a requirements contract or an indefinite quantities contract, the agreement does not obligate Noble Roman's to order or pay for boxes manufactured and delivered by Pizza Boxes to Multifoods. If the letter be construed as an order for 2,500,000 boxes, it was an order placed by Noble Roman's for the benefit of Multifoods and for which Multifoods was financially responsible.6 Multifoods was not a party to this litigation.
Accordingly, I agree that the summary judgment in favor of Pizza Boxes was erroneous except as to unpaid printing prep charges and that subject to the exception for prep charges, summary judgment was appropriate in favor of Noble Roman's with respect to the agreement represented by the November 2001 letter as confirmed by Mr. Gilbert.
. Noble Roman's concedes that it is liable for up to $4,500 for printing prep charges. It is my view that Pizza Boxes is entitled to collect any portion of prep charges incurred but not paid by Multifoods with respect to boxes actually manufactured by Pizza Boxes without a purchase order from Multifoods or for other boxes not manufactured but for which prep charges were incurred.
. I venture no opinion with respect to whether Noble Roman's had actual or apparent authority to enter into a contract on behalf of Multifoods nor whethér Multifoods might have been liable to Pizza Boxes for the boxes actually manufactured.