ARGUMENT
I.
This Court should reverse the summary judgment granted to ELF that limited AmeriChem
to economic damages because statutory interpretation and policy interpretation require
that § 2-713 of the Uniform Commercial Code be applied to award market damages.
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A. § 2-713 is controlling as a measure of damages in this case over § 1-305 because its
language is more specifically related to the issue at hand.
Statutory canons of construction dictate that “when there is a conflict between
a statute dealing generally with a subject and another dealing specifically with a certain
phase of [the subject], the specific statute controls unless it appears that the legislature
intended to make the general act controlling.” Tongish v. Thomas, 840 P.2d 471, 474
(Kan. 1992). Section 2-713 should prevail as the more specific statute over § 1-305 when
applying this rule of statutory construction. Id. Applying the market value measure of
damages under § 2-713 is not prohibited by § 1-305 of the Universal Commercial Code,
and is in fact expressly permitted by the Code. Texpar Energy, Inc. v. Murphy Oil USA,
Inc, 45 F.3d 1111, 1114 (7th Cir. 1995).
In Tongish, a farmers’ coop entered into a contract to purchase sunflower seeds
from a local grower who later repudiated after the market price of the seeds rose to
double their contract price. The trial court in Tongish awarded only the coop’s lost
expected profits, but the Supreme Court of Kansas, reversed the judgment on appeal
and held that the proper measure of damages is the difference between the contract
price and market price. Tongish v. Thomas, 840 P.2d 471, 477 (Kan. 1992). The
application of § 2-713 of the Universal Commercial Code prevailed over § 1-305 because
the court found it to specifically describe a damage remedy that gives the buyer certain
damages in the event of a seller’s breach on a contract for the sale of goods, while it
found § 1-305 to be a general guide of how remedies of the UCC should be applied. Id.
at 473. The court’s rationale for applying specific statutes over general statutes is that
the purpose and intent of the legislature always govern. Id.