ANTICIPATORY BREACH UCC: UPTON, AN UNDERWRITE AT LLOYDS OF LONDON V. GINN (COA 8/10/07)

UPTON, AN UNDERWRITE AT LLOYDS OF LONDON V. GINN
BUSINESS:  UNIFORM COMMERCIAL CODE (UCC) ANTICAPATORY BREACH
2005-CA-001062
PUBLISHED: AFFIRMING
PANEL:  ABRAMSON PRESIDING; TAYLOR AND KNOPF CONCUR
COUNTY: MONTGOMERY
DATE RENDERED: 8/10/2007

Ginn bought tobacco from Lloyds for .70 per pound.  Lloyds was selling it to offset the loss it insured in the warehouse whose roof had collapsed under snow.

When Ginn went to pick up the tobacco the old switcheroo had occurred.  Good tobacco had been switched with bad.  Ginn started removing the good tobacco left but had to stop after a few days to attend a preset trade show.  Upon Ginn’s return he found the warehouse locked tight.  Lloyds said he repudiated the contract so they sold the remaining tobacco for .05 per pound.  Ginn yelled foul and Lloyds filed the action to attempt to recover the .65 per pound difference.

The trial court said no dice to Lloyds, finding the anticipatory repudiation of Ginn was not unequivocal as required. Also the alleged anticipatory repudiation did not substantially impair the value of the contract to Lloyds as it only involved 2% of the total.

The CA upheld the lower Court finding the lower Court’s findings of fact was not clearly erroneous.

Digested by Paul Schurman

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