The only effect of the merchant's exception, under Ohio Rev. Code Ann. § 1302.04(B) (1979), is to take away from a merchant who receives a writing in confirmation of a contract the statute of frauds defense, if the merchant does not object. The sender must still persuade the trier of fact that a contract was in fact made orally, to which the written confirmation applies.
Appellant sought to buy used printing machinery from appellee. After oral negotiations with appellee's agent, appellant sent appellee a written purchase order for the goods and partial payment. Several weeks after sending its order, appellant contacted appellee’s agent as to the status of the goods, which had been sold to another. Appellant sued appellee for breach of contract. Appellee argued that the Statute of Frauds barred enforcement of the contract. Appellant averred that the "merchants exception," Ohio Rev. Code Ann. § 1302.04(B), to the statute of frauds were applicable and satisfied. The jury found for appellant, but the court entered judgment for appellee on statute of frauds grounds. On appeal, the court reversed.
Did appellant satisfy the "merchants" exception to the Statute of Frauds by sending a written confirmation to appellee?
Appellee received from appellant a confirmation in writing. There was no requirement that the receipt be from any agent in particular. Also, appellee had reason to know of the writing's contents and appellee failed to give appellant timely notice of objection. Accordingly, the writing satisfied the Statute of Frauds under Ohio Rev. Code Ann. § 1302.04(B).