FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 30, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
OBERMEYER HYDRO ACCESSORIES,
INC., d/b/a Obermeyer Hydro, Inc.,
Plaintiff Counterclaim Defendant -
Appellant,
v. No. 16-1083
CSI CALENDERING, INC., d/b/a CSI
Calendering Specialists, Inc.,
Defendant Counterclaimant-
Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CV-00184-RM-KMT)
_________________________________
Daniel M. Gross, Woods & Aitken, LLP, Denver, Colorado; (Mark D. Changaris, Berg
Hill Greenleaf & Ruscitti, LLP, Boulder, Colorado, on the briefs), for Plaintiff
Counterclaim Defendant-Appellant.
Reid A. Page, Stinson Leonard Street, LLP, Greenwood Village, Colorado; (Ryan M.
Sugden, Stinson Leonard Street, LLP, Greenwood Village, Colorado, on the brief), for
Defendant Counterclaimant-Appellee.
_________________________________
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
This appeal concerns a contract dispute. The parties agree that they had a contract
but differ on the price. At the core of the dispute is a price quote dated January 11, 2013
(the January quote) from CSI Calendering (CSI) to Obermeyer Hydro Accessories, Inc.
(Obermeyer). The quote seems straightforward enough:
Aplt. App. at 183. There is no dispute that the “Polyester Tire Cord Only” line refers to
fabric sheets purchased by Obermeyer from CSI and that the “Calendering, Compound &
Poly Only” line refers to a process called calendering by which rubber is compressed into
the fabric sheets.
But the parties read the document quite differently. CSI claims that the quote
unambiguously states that the combined price is $5.97 for each pound of calendered
fabric. Obermeyer, on the other hand, views the quote as reflecting prices that the parties
had previously agreed to when CSI prepared separate quotes for the fabric sheets and for
the calendering of those sheets: $3.74 per pound of untreated fabric and $2.23 per pound
of calendered product. Although it may appear that there is no difference whatsoever, the
price CSI seeks is almost a 50% increase above what Obermeyer had been paying.
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The increase is a consequence of the fact that calendering doubles the weight of
the fabric. To obtain one pound of calendered fabric under the previous pricing,
Obermeyer would purchase one-half pound of fabric sheet (for $1.87) and pay $2.23 for
that half pound to be calendered into one pound of calendered fabric. That came to $4.10
per pound of calendered fabric. Under CSI’s interpretation of the January quote,
however, Obermeyer would pay $5.97 for the same product. The essence of the parties’
dispute is whether the $3.74/lb price of the fabric sheets is based on the weight of the
untreated sheets (the untreated pricing) or the weight of the calendered product (the
treated pricing).
The district court granted summary judgment to CSI. On appeal the parties raise a
number of arguments about whose view of the price should prevail. They disagree about
whether they already had agreed on the price before issuance of the January quote,
whether the January quote modified any prior agreement, and whether Obermeyer is
bound by CSI’s view of the pricing because Obermeyer paid a number of invoices over
several months that reflected that view. In our view, there are unresolved factual disputes
that preclude judgment for either party at this time. Exercising jurisdiction under 28
U.S.C. § 1291, we reverse and remand for further proceedings. We begin with a detailed
discussion of the relationship between CSI and Obermeyer before and after the January
quote because the parties’ arguments rely so much on that relationship.
I. BACKGROUND
Obermeyer is a Colorado-based, family-owned business that designs and
manufactures inflatable dams and other water-control structures. It purchased fabric
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sheets from CSI, a Texas-based company, and frequently paid CSI to compress, or
calender, rubber into the sheets. At the time of the dispute Obermeyer was managed by
three people. Its president, Henry Obermeyer, was responsible for product development
and overall management. Vice President Rob Eckman was responsible for sales,
marketing, engineering, and project management. And Katherine Obermeyer,
Mr. Obermeyer’s wife, handled administrative matters that included accounts payable
and receivable, payroll, and rubber purchasing.
CSI obtained its fabric from a Chinese supplier. Before the January quote it would
send Obermeyer an invoice for the fabric 90 days after the fabric arrived in CSI’s
warehouse in Arlington, Texas, or when it was removed from the warehouse for
calendering, whichever was sooner. CSI billed Obermeyer separately for the fabric at its
untreated weight, and for the calendering at the increased weight of the finished fabric.
Although Obermeyer was expected to pay CSI within 30 days after invoicing, its
payments were typically late because of delayed payments from its customers—usually
20 to 50 days late, but occasionally as much as 60 to 91 days late. From 2010 to 2012,
eight fabric and 13 calendering purchase orders were handled this way.
In October 2012, CSI sent Obermeyer a quote for uncalendered fabric at $3.74/lb.
The cover e-mail touted, “We are pleased to inform you that [the] below quotes are
$0.14/lb lower than our last purchase.” Aplt. App. at 359. The quote was valid until the
year’s end. As always in the past, the quote used untreated pricing (that is, used the
weight of the fabric before calendering) rather than treated pricing (using the weight after
calendering). Mr. Obermeyer asked if CSI would be willing to delay invoicing
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Obermeyer for the fabric until CSI had calendered it so that the fabric and calendering
would be billed at the same time. CSI responded by reiterating its standing practice.
Beginning in November the communications between Obermeyer and CSI were
shaped by Obermeyer’s efforts to obtain a contract for a project involving four dams in
Guiyang, China (the China project). In early November, Mr. Obermeyer notified CSI of
a “prospective project, requiring expedited delivery” of some 100,000 linear yards of
“fabric and associated rubber.” Id. at 369. (A linear yard of untreated fabric weighed
about 2.73 pounds.) On November 28, Mr. Obermeyer stressed in an e-mail that the
“prospective order from China depends on our commitment to the earliest possible
delivery,” requiring as much as 176,000 pounds of fabric to be delivered in weekly
batches beginning in January 2013. Id. at 365. The next day, CSI sent Mr. Obermeyer a
proposed delivery schedule for the initial months of the China project. CSI already had
some fabric in its Texas warehouse and additional fabric would be shipped from China to
CSI in 20,000 pound increments from mid-December through January. CSI would send
calendered product to Obermeyer from mid-December through January. Because CSI
would need to calender the fabric shortly after it arrived from its supplier, it would not be
warehoused. A few hours after receiving CSI’s proposed schedule, Mr. Obermeyer sent
an e-mail ordering fabric to be sent from China in December and added: “We will speak
again in two weeks regarding the next shipment that would be required to meet our China
Project schedule. Presumably we will have the contract with our client signed by then.”
Id. at 387. It appears that a purchase order was not attached to the e-mail.
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Four days later, on December 3, CSI sent Mr. Obermeyer an e-mail beginning,
“Attached is the updated pricing for [calendering].” Id. at 179. The attached quote, good
for 30 days, set the calendering price at $2.23/lb, a 34% increase over the prior price of
$1.66/lb. On December 6, Mrs. Obermeyer sent CSI a purchase order for the untreated
fabric that Mr. Obermeyer had ordered on November 29. The price field was left blank.
On December 26, Mr. Obermeyer informed CSI that “[w]e just received notice
that our customer has signed their contract with the project owner,” and “[w]e expect to
have our contract signed within a few days.” Id. at 396. He then reported on January 3
that “[w]e believe we have reached agreement with our customer on all contract terms”
and that “[o]nly the final signed contract remains outstanding.” Id. at 395. CSI
responded that it had asked its supplier “to hold on to our locked-in prices.” Id. On
January 8, 2013, Mrs. Obermeyer e-mailed a new purchase order for 100,000 pounds of
fabric for the China project. The price field was again left blank, though a CSI employee
responded the same day: “I am not clear why the unit price has not been mentioned, the
unit price is [$]3.74/lb.” Id. at 402. This was the price that CSI had quoted in October as
valid through December. The next day, CSI sent Mr. Obermeyer a delivery schedule and
stated that it had told its supplier “to proceed with production of [fabric] unless we ask
them to stop within [the] next 2 days.” Id. at 409.
CSI representatives met with Mr. Obermeyer and Mr. Eckman for about 20
minutes on the morning of January 10. CSI relies on this meeting to support its large
price increase. The parties discussed Obermeyer’s prior request that CSI send a single
invoice for the fabric and calendering upon completion of calendering, and CSI agreed.
6
Although CSI contends that this change in invoicing was the reason for the price
increase, there is no evidence that the parties discussed any price increase or a need for a
change from untreated pricing to treated pricing as a result of the change in invoicing.
Also on January 10, Obermeyer gave CSI three purchase orders for the China
project: a 60,000-pound fabric order at $3.74/lb, a 100,000-pound fabric order at
$3.74/lb, and a calendering order for 178,500 pounds with the price left blank. It claims
that the orders were given at the meeting; CSI claims they were given after. The district
court’s Order states that they were delivered on the same day as the meeting, but does not
give a time.
Later that day, CSI and Obermeyer confirmed the 100,000-pound fabric order via
e-mail, and Mr. Obermeyer placed an additional 40,000-pound order of fabric for other
projects at $3.74/lb, to be billed when calendered. CSI acknowledged that it
“underst[oo]d that this project is a go and we should release all [purchase orders] for the
production to be shipped.” Id. at 407, 548. Mr. Obermeyer replied, “The project is a go.”
Id. at 407.
On January 11, CSI e-mailed Mr. Obermeyer and Mr. Eckman the quote copied at
the beginning of this opinion. The quote was for material to be used in the China project,
and, as CSI must have known, Obermeyer had almost certainly already bound itself to
what it would charge its customer because the terms for the China contract had been
settled. Yet even though CSI insists that this quote increased the price Obermeyer would
pay by about 46% (by doubling the price of untreated fabric), neither the e-mail nor the
quote document alerted Obermeyer to any increase in price by changing from untreated
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pricing to treated pricing for the fabric, or explained why such a huge increase was
necessary. The word turnkey in the quote had never been used by the parties in their
previous exchanges and was not defined in the e-mail or quote. (The parties disagree on
whether it was a term used in the industry for a particular type of billing.) Mr.
Obermeyer testified that he reviewed the quote but did not perceive any price change
because CSI and Obermeyer had not discussed a price increase and “[i]t looked like it
was restating our -- the prices on the [purchase order] for fabric. It looked like it was
restating the quoted calendering price.” Id. at 474. (As noted at the outset of this
opinion, the lines for fabric and for calendering stated the same prices per pound as
before.) Mr. Obermeyer forwarded the quote to Mr. Eckman, asking him to review it “to
make sure this matches our numbers and that the quoted price is in line with the historical
billings,” id. at 162, but there is no record that Mr. Eckman replied to the e-mail.
From January to June 2013, CSI delivered to Obermeyer 21 shipments of
calendered fabric totaling 402,365 pounds. About the same time that it shipped the
calendered fabric, it would send Obermeyer an invoice. Although the invoices reflected
CSI’s understanding of the January quote, Obermeyer made 21 payments from February
to October totaling roughly $2 million for the shipments. During this time,
Mrs. Obermeyer “did not do any analysis” of the January quote’s pricing, other than to
note that “here’s their line item for our price, here’s another line item for the price, and
here’s the sum of what was above.” Id. at 319. In July, Mrs. Obermeyer issued a new
purchase order with one line for 20,000 pounds of fabric at $3.74/lb, totaling $74,800,
and another line for 20,000 pounds of calendering at $2.23/lb, totaling $44,600, without
8
any mention of turnkey or a total price per pound for fabric and calendering. Although it
is not clear whether this order was ultimately filed, a CSI representative testified that he
would have likely processed the purchase order at the higher treated pricing.
In late October or early November 2013, Mrs. Obermeyer compared the project
costs to the project budget and determined that Obermeyer had been charged much more
than it had budgeted. Obermeyer notified CSI in November of its objection to
overbilling, and it later refused to pay its outstanding debt. In January 2014, Obermeyer
filed suit in the United States District Court for the District of Colorado for breach of
contract, promissory estoppel, money had and received, unjust enrichment, and violation
of the Texas Deceptive Trade Practices Act. CSI counterclaimed for breach of contract
and unjust enrichment. CSI moved for summary judgment, and Obermeyer moved for
partial summary judgment on liability for its breach-of-contract claim. The district court
denied Obermeyer’s motion and granted summary judgment for CSI.
II. DISCUSSION
“We review the district court’s grant of summary judgment de novo.” Higby
Crane Serv., LLC v. Nat’l Helium, LLC, 751 F.3d 1157, 1160 (10th Cir. 2014). Summary
judgment is appropriate if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is
genuine when the evidence is such that a reasonable jury could return a verdict for the
nonmoving party, and a fact is material when it might affect the outcome of the suit under
the governing substantive law.” Bird v. West Valley City, 832 F.3d 1188, 1199 (10th Cir.
2016) (brackets and internal quotation marks omitted). We view the evidence, and draw
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all reasonable inferences therefrom, in the light most favorable to the nonmoving party.
See Higby Crane Serv., 751 F.3d at 1160. Because the parties agree that Texas law
governs the agreement, we apply Texas law. See Carolina Cas. Ins. Co. v. Nanodetex
Corp., 733 F.3d 1018, 1022 (10th Cir. 2013) (adopting the parties’ shared view of what
law governs).
Although CSI and Obermeyer agree that they had a contract, they do not agree on
when it was formed. Obermeyer contends that the contract was entered into before the
January quote and was not subsequently modified. CSI contends that the contract was
not formed until the January quote and that even if the parties had a prior contract, the
contract was modified (1) by the quote or (2) by Obermeyer’s making numerous
payments on invoices using the treated pricing. We hold that there was sufficient
evidence for a jury to find that the parties had reached a contract before the January quote
and that there are disputed issues of fact precluding summary judgment for either party
on whether the contract was modified by the quote or by Obermeyer’s later payments.
A. Was there a contract before January 11?
Obermeyer contends that the parties had already formed a contract at the lower
rate of $3.74/lb for untreated fabric and $2.23/lb for calendering before the January 11
quote. “Under Texas law, the elements needed to form a valid and binding contract are
(1) an offer; (2) acceptance in strict compliance with the offer’s terms; (3) a meeting of
the minds; (4) consent by both parties; (5) execution and delivery; and (6) consideration.”
Specialty Select Care Ctr. of San Antonio, L.L.C. v. Owen, 499 S.W.3d 37, 43 (Tex. App.
2016) (brackets and internal quotation marks omitted); see also Coleman v. Reich, 417
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S.W.3d 488, 491 (Tex. App. 2013). In determining whether there was a meeting of the
minds, Texas employs an “objective standard of what the parties said and did.” Copeland
v. Alsobrook, 3 S.W.3d 598, 604 (Tex. App. 1999). Obermeyer claims that CSI’s
October quote for fabric at $3.74/lb and its December quote for calendering at $2.23/lb
were offers that it accepted through its December 6 and January 8 purchase orders for
untreated fabric and its January 10 purchase orders for fabric and calendering. Although
the January 10 purchase order for calendering did not include a price term, the parties do
not dispute that calendering was to be charged at the rate set forth in CSI’s December
quote—$2.23 per pound of calendered fabric (the treated price).
In challenging the proposition that the parties had agreed on pricing by January 10,
CSI argues only that until the January 10 meeting the parties had not agreed on joint
invoicing for fabric and calendering and that the earlier quotes were for fabric-only and
calendering-only sales. But there is no evidence that CSI had ever suggested before
January 11 that the timing of invoices would affect the price. A jury could reasonably
find that a contract price of $3.74/lb for untreated fabric and $2.23/lb for calendering had
been offered and accepted before the January 11 quote.
B. January Quote
Even assuming that the parties had formed a contract at the untreated price by
January 10, CSI argues that it is entitled to summary judgment because the parties later
modified the pricing to the treated rate through the January quote. Like contract
formation, modification requires mutual consent, which is ordinarily a question of fact for
the jury. See Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 702 (Tex. App.
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2008) (“Whether a contract is modified depends on the parties’ intentions and is a
question of fact.”). “The burden of proving that a contract has been modified is on the
party asserting modification,” who “must prove that the other party had notice of the
change and that the change was accepted.” Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573,
581 (Tex. App. 1998). “[T]he other party [must have] had knowledge of the nature of the
change.” Id.
CSI argues that the invoices are clear in stating that the price is $5.97 per pound of
calendered fabric and that this change in pricing was signaled by the use of the term
turnkey on the January quote. But we think that the clarity of the quote is a question for
the jury to decide. There are a number of reasons why Obermeyer could have thought
that the quote reflected the prior practice of charging $3.74/lb for untreated fabric and
$2.23/lb for calendering.
First, the quote shows the $5.97 price as the sum of the previously used prices of
$3.74 and $2.23. It would be natural to assume that this indicated consistency, rather
than a massive change in pricing.
Second, CSI did not state explicitly that it was changing the price or that it needed
to increase the price if it was going to agree to single invoicing. On prior occasions CSI
had notified Obermeyer of price changes—when it “updated” the calendering price on
December 3, 2012, Aplt. App. at 179‒80, and, unsurprisingly, when it reduced the price
of fabric in October 2012. Such evidence of course of dealing is a well-recognized tool
of contract interpretation under the Uniform Commercial Code (UCC). See Tex. Bus. &
Com. Code § 1.303(d). And there would be no reason for Obermeyer to think that a price
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increase would be needed as a result of single invoicing. To be sure, the new single-
invoice arrangement meant that Obermeyer would not have to pay for the fabric until it
had been calendered, whereas the earlier arrangement was that Obermeyer would have to
pay for fabric no later than 90 days after it had been warehoused. But the 90-day limit
had not been strictly enforced in the past. And in any event this change was highly
unlikely to affect orders for the China project, because CSI was to calender the fabric
immediately after receiving it from its supplier, so all scheduled fabric orders would be
invoiced (jointly with calendering) well within 90 days of CSI’s receipt of the fabric from
its supplier.
Third, CSI never explained to Obermeyer how it was using the term turnkey and
the term had never before been used in their dealings. Mr. Obermeyer swore that he had
never encountered the term in his calendered-fabric transactions.
Fourth, Obermeyer had informed CSI on January 3 that it thought it had “reached
agreement with [its] customer on all contract terms [and] [o]nly the final signed contract
remains outstanding.” Aplt. App. at 395. CSI responded that it had asked its fabric
supplier “to hold on to our locked-in prices,” id., presumably so that CSI could hold its
price to Obermeyer steady. Obermeyer could assume that no honest business would
suddenly change prices on a customer that had relied on its quotes to submit a bid so
significant to its business. Indeed, Texas law requires that the modification of a contract
for the sale of goods must be made in objective and subjective good faith. See Man
Indus. (India), Ltd. v. Midcontinent Exp. Pipeline, LLC, 407 S.W.3d 342, 363‒64 (Tex.
App. 2013). “To establish objective good faith, the party asserting the modification must
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demonstrate that the decision to seek modification was the result of a factor, such as
increased costs, that would cause an ordinary merchant to seek a modification of the
contract.” Id. at 366. CSI claims that it charged the higher price “in response to a
commercial exigency”—the invoicing of fabric and calendering together—and that it
faced additional risk from delayed payment for the fabric. Aplee. Br. at 51. As
previously noted, however, this concern is questionable. There is no evidence that CSI
ever explained the concern to Obermeyer, which would have given Obermeyer a chance
to stick with the prior invoicing practice at a much lower price. And even if some price
increase was justified, it beggars belief that CSI calculated its increased risk to be exactly
the amount of the higher price achieved by adding together the two earlier prices (for
fabric and calendering) and applying them to the increased weight. The specifics of the
purported change smack of fast dealing. On this record a jury could reasonably reject
CSI’s explanation.
C. Payment of Invoices
CSI’s best argument is that Obermeyer accepted the treated pricing by paying it
over the course of nine months. Regardless of what happened up to and including the
January quote, argues CSI, the invoices sent to Obermeyer from then on reflected a price
of $5.97 per pound of calendered product and Obermeyer made 21 payments on those
invoices between February and October 2013. CSI contends that these payments
established a course of performance regarding the contract, which is entitled to
significant weight in interpreting the meaning of a contract. See Tex. Bus. & Com. Code
§ 1.303(d) (course of performance “may give particular meaning to specific terms of the
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agreement, and may supplement or qualify the terms of the agreement”); id. § 1.303(e)(2)
(“[C]ourse of performance prevails over course of dealing and usage of trade.”). Under
the UCC:
A “course of performance” is a sequence of conduct between the parties to
a particular transaction that exists if:
(1) the agreement of the parties with respect to the transaction involves
repeated occasions for performance by a party; and
(2) the other party, with knowledge of the nature of the performance and
opportunity for objection to it, accepts the performance or acquiesces in
it without objection.
Id. § 1.303(a) (emphasis added). We assume that the repeated “performance” that CSI
relies on is its submission of invoices setting forth its treated pricing. What is lacking,
however, is conclusive evidence that Obermeyer had “knowledge” that the invoices
reflected treated pricing. Here there is substantial evidence that Obermeyer, relying on
the good faith of CSI, acted without realizing that the price had been substantially
increased. Even as late as July, when the now-contested invoices were still being paid,
Mrs. Obermeyer sent an additional purchase order for fabric and calendering at the
original rates of $3.74/lb and $2.23/lb. Mrs. Obermeyer testified that she discovered the
price increase only after noting that the cost of calendered product for the China project
had substantially exceeded the budgeted amount.
CSI argues that Obermeyer should have known about the new pricing and should
be held responsible at that price. This is hardly a frivolous argument. Payment at a
higher price can be convincing evidence that the customer agreed to the price. And there
may be a reliance interest of the seller who infers from payment that there is agreement
on the new price. Texas law supports such a should-have-known test. See Preston Farm
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& Ranch Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 298 (Tex. 1981). But we
think that what Obermeyer “should have known” is a question for the jury. We have
already recited several reasons why Obermeyer would have interpreted the January quote
as leaving the price unchanged. The question is whether Obermeyer should have realized
sooner that the invoices did not reflect its understanding of the pricing. Should
Obermeyer have trusted CSI not to be sneaking a huge price increase past it and
postponed any audit of their dealings, or should it have carefully studied each invoice as a
precaution? In our view, reasonable people could differ in that assessment.
Finally, CSI argues that the contract should be interpreted according to CSI’s
intended meaning under what it terms the doctrine of negligent assent set forth in
Restatement (Second) of Contracts § 20(2), which provides: “The manifestations of the
parties are operative in accordance with the meaning attached to them by one of the
parties if . . . (b) that party has no reason to know of any different meaning attached by
the other, and the other has reason to know the meaning attached by the first party.”
CSI contends that its intended meaning of the invoices should prevail because Obermeyer
had reason to know that it was being charged under treated pricing. But whether
Obermeyer had “reason to know” is, as far as the parties have informed us, essentially the
same question as whether it “should have known” what CSI meant by its pricing. Again,
this is a jury question. Reasonable people can disagree on whether Obermeyer was
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negligent in not detecting the pricing change sooner. Summary judgment would not be
appropriate on the ground of negligent assent.1
CSI cautions that a decision against it would “inject untenable uncertainty into
commercial transactions” by “encourag[ing] contracting parties to remain ignorant of the
prices they pay.” Aplee. Br. at 40. We disagree. There is a strong policy interest in
encouraging trust between parties to commercial transactions. Commerce is not
enhanced if buyers and sellers must always treat each other as adversaries, auditing every
transaction as it occurs to be sure the other party is not cheating. If the jury finds that
Obermeyer had been misled by an unscrupulous supplier on which it had relied in good
faith, we do not think that the world of commerce will suffer from a verdict in favor of
Obermeyer.
III. CONCLUSION
We REVERSE the district court’s grant of summary judgment to CSI and
REMAND for further proceedings. We GRANT the unopposed motion to seal Volume
4 of appellant’s appendix, which contains four pages. We also GRANT counsel’s
motion to withdraw.
1
Obermeyer suggests that we need not address the negligent-assent doctrine because it is
inapplicable to UCC transactions under Texas law. But much of Texas common law
applies to commercial transactions “[u]nless displaced by the particular provisions of [the
UCC].” Tex. Bus. & Com. Code § 1.103(b). And Obermeyer does not contest the
applicability of the should-have-known test in Preston Farm, which, in the present
context, would appear to assist CSI at least as much as the negligent-assent doctrine.
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