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Bonebrake v. Cox - 499 F.2d 951 (8th Cir. 1974)

Rule:

The test for inclusion or exclusion of contracts involving mixed goods and services is not whether they are mixed, but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service with goods incidentally involved, such as a contract with an artist for a painting, or is a transaction of sale with labor incidentally involved, such as the installation of a water heater in a bathroom. 

Facts:

Simek entered into two contracts with the Cox brothers for the sale and installation in defendants' bowling alley of bowling equipment. Unfortunately, Simek died. At the time of his death, the delivery and installation for the bowling alley were incomplete and less than half of the purchase price paid. The defendants attempted to act within their contract to secure the remaining performance and goods but when they could not, they obtained the equipment elsewhere and hired others to finish the installation. The decedent's estate filed suit to recover the balance of the contract price. Defendants filed counterclaims for damages suffered. The special master rejected defendants' counterclaims and their defense that Simek or his estate had breached the contracts first, and awarded plaintiff the balance due on the contracts ($28,000) less the value to the seller of unaccepted goods ($1,000). The case was appealed.

Issue:

Was the estate entitled to recover the balance of the contract?

Answer:

No.

Conclusion:

The court reversed he judgment and remanded the case. The court held that although the contract was for both goods and services, it was governed by the Uniform Commercial Code because it was predominantly a transaction of sale with labor incidentally involved. As such, the decedent committed an anticipatory breach, and that appellants adequately preserved their right to recover for the breach even though they accepted the defective goods by having their attorney send a letter to the administrator of the decedent's estate.

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