Cause of Action: Angel Tool and Equipment Manufacturing, Inc., vs. Cut Above Construction, Llc,

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CAUSE OF ACTION: Angel Tool and Equipment Manufacturing, Inc., vs. Cut Above Construction, LLC, FACTS: Angel and Cut Above entered into a contract for the sale and purchase of a specialized crane. Pursuant to the contract Cut Above is to pay Angel $100,000.00 for the manufacture of a crane with special hydraulics. Cut Above paid Angel a deposit of $50,000.00 with the remainder to be paid to Angel upon delivery of the crane, per specifications, on January 15, 2011. Following a conversation with Angel’s executive Cut Above’s understanding from the executive was that the crane would not be completed until January 31, 2011, at which time it was to be shipped via truck FOB the construction site. The crane arrived on February 4, 2011, and Cut Above accepted delivery of the crane but withheld from its final payment to Angel its cost of renting another crane, as well as anticipated delay costs on the project. Cut Above withheld $5,000.00 for the cost of the crane rental as well as $5,000.00 for the delay costs. ISSUE: Whether delay of the crane delivery entitled Cut Above to withhold any money from payment. Whether delay of the crane delivery entitled Cut Above to damages. LAW: UCC § 2–607. Effect of Acceptance; Notice of Breach; Burden of Establishing Breach After Acceptance; Notice of Claim or Litigation to Person Answerable Over. UCC § 2–717. Deduction of Damages From the Price. UCC § 2-712. "Cover"; Buyer's Procurement of Substitute Goods. UCC § 2-607. Effect of Acceptance; Notice of Breach; Burden of Establishing Breach After Acceptance; Notice of Claim or Litigation to Person Answerable Over. RATIONALE: The court holds in favor of the defendant, Cut Above concerning damages resulting from the plaintiffs, Angels, failure to perform. The buyer may withhold those damages from any payment of purchase price remaining due (U.C.C. 2-717), but will be denied damages absent timely notice of breach to the seller (U.C.C. 2-607(3)(a)). Cut Above made timely inquires...
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