Present: All the Justices 

MOORE & MOORE GENERAL 

CONTRACTORS, INC. 

OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 961324 April 18, 1997 

BASEPOINT, INC. 

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY 

J. Peyton Farmer, Judge 

 The parties to this dispute agree that its outcome is 

controlled by the Uniform Commercial Code ___ Sales (UCC), Code 

§ 8.2-101 et seq. The central issues on appeal are whether, 

under the facts, a buyer's acceptance of nonconforming goods can 

be revoked because of the nonconformity, and whether, 

notwithstanding the inability to revoke, the buyer is entitled to 

recover from the seller the cost of substitute goods. 

 This controversy stems from a contract between a 

subcontractor and a general contractor in connection with 

construction of a Red Lobster restaurant in Spotsylvania County. 

 Basepoint, Inc., the subcontractor, entered into an agreement 

with Moore & Moore General Contractors, Inc., the general 

contractor, to supply casework, including cabinets, and interior 

trim items for the facility, which was owned by General Mills 

Restaurants, Inc. 

 Moore & Moore, the buyer, refused to pay for cabinets 

delivered by Basepoint, the seller. Thereafter, the seller 

timely filed a memorandum of mechanic's lien in the sum of 

$28,080 and the present bill of complaint to enforce the lien. 

Named as defendants to the bill were the buyer and the owner. 

 In its answer, the buyer denied indebtedness to the seller, 
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claiming the materials supplied were defective. In addition, the 

buyer filed a cross-bill seeking recovery of approximately 

$47,000 to cover the cost of removing the "defective" casework, 

rebuilding the casework, and finishing the remaining work under 

the seller's contract. 

 Subsequently, by order, the property was released from the 

lien upon the filing of an appropriate bond as provided by Code 

§ 43-70. The owner then was dismissed from the suit. 

 The cause was referred to a commissioner in chancery, who 

conducted an evidentiary hearing. The facts were presented 

through ore tenus testimony, a de bene esse deposition, and 

documentary exhibits. 

 The commissioner submitted a report finding that the lien 

was valid, that the seller was entitled to judgment against the 

buyer in the sum claimed, and that the buyer was not entitled to 

judgment on its cross-claim. 

 The trial court overruled the buyer's exceptions to the 

commissioner's report and confirmed it. The buyer appeals from 

the March 1996 final decree. 

 Upon appellate review, a commissioner in chancery's factual 

findings based on ore tenus evidence that are confirmed by the 

trial court are given great weight. These findings will be 

reversed only if they are plainly wrong or without evidence to 

support them. Cooper v. Cooper, 249 Va. 511, 518, 457 S.E.2d 88, 

92 (1995). 
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 The commissioner made the following factual findings. In 

connection with the bidding process for the Red Lobster project, 

the buyer provided the seller, which makes and sells woodwork, 

with plans and specifications prepared by Vision III, an 

architect, dated in November 1990. The seller made a proposal in 

December 1990 to the buyer "to furnish millwork items in 

accordance with plans and specifications, prepared by Vision III, 

dated 11-30-90." These items included custom-made cabinets such 

as bar cabinets, food service cabinets, overhead office cabinets 

and restroom vanity cabinets. Shop drawings then were prepared 

and accepted by the parties. 

 The Vision III plans provided that all cabinets would be 

made of wood. The approved shop drawings made reference to the 

use of "melamine." There was a dispute in the evidence over the 

meaning of "melamine." The seller offered evidence to show that 

"melamine," as used in the shop drawings, referred to a composite 

product with a particular type of hard finish. The buyer 

presented evidence that the word "melamine" referred only to a 

finish, which can be placed on composite material or wood. 

According to the buyer, reference in the shop drawings to 

"melamine" meant that the seller was authorized to provide wood 

covered with "melamine," not a composite material covered with a 

hard surface. 

 In making his factual findings, the commissioner principally 

relied upon the ore tenus testimony of Donnie Ray Hall. Called 
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as a witness by the seller, Hall had been the buyer's job 

superintendent for the Red Lobster project. Hall, a contractor 

who was experienced in millwork and carpentry, worked under the 

buyer's field superintendent, Allen L. Lyle. 

 According to Hall, he and Lyle were aware of the reference 

to "melamine" in the shop drawings and that the Vision III plans 

called for the use of plywood cabinets. Describing "melamine" as 

"a product with a particle board core in it," Hall testified that 

Lyle "knew" that particle board was to be used instead of 

plywood, that he and Lyle concluded the owner "would not know the 

difference" were it used in place of plywood, and that the 

particle board was a product that would perform "just as well" as 

wood in these circumstances. 

 Upon delivery of the cabinets to the jobsite between 

March 19, 1991 and April 12, 1991, Hall and Lyle inspected them 

and "did see it was particle boards." Hall found the product to 

be "in A-1 shape . . . other than . . . what it was made of." 

According to Hall, Lyle "had to get" the exposed ends of the work 

"covered up" with drop cloths before installation so that the 

owner's inspector would not see "these products prior to" 

installation. Hall testified that Lyle "thought he was saving 

money" by accepting the cabinets as delivered. 

 Lyle then directed installation of all the cabinets and 

every one was installed prior to the inspection by the owner's 

representative. On May 1, 1991, the owner's inspector examined 
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the installed millwork. He rejected the cabinets, stating they 

did not conform to the plans and specifications. On May 2, 1991, 

the buyer sent a letter to the seller stating, "On Wednesday, May 

1, 1991, it was discovered that most of your casework is 

constructed of particle board. Since the plans [] we provided 

you for the above referenced job [] call for plywood, all of the 

casework that has particle board does not conform and must be 

replaced." In the letter, the buyer set the following Tuesday as 

the deadline for delivery of the replacement material, noting 

that the seller already had notified the buyer's field 

superintendent it could not meet the deadline. 

 Later, Hall was told by one of the buyer's executives "that 

Allen Lyle had made a big mistake and they had used the wrong 

products, they had approved the wrong products to be used in the 

cabinets." According to Hall, the executive "felt that his man 

was really at fault and had made a mistake in this." 

 Upon removal of the cabinets made of particle board, the 

buyer immediately procured plywood replacements from another 

subcontractor. The new cabinets were installed promptly and the 

project was completed nearly on time. 

 UCC § 8.2-601, dealing with a buyer's rights on improper 

delivery, provides, as pertinent, that if "goods . . . fail in 

any respect to conform to the contract, the buyer may (a) reject 

the whole; or (b) accept the whole; or (c) accept any commercial 

unit or units and reject the rest." 
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 UCC § 8.2-606, dealing with what constitutes acceptance of 

goods, provides, as pertinent, that "(1) Acceptance of goods 

occurs when the buyer . . . (c) does any act inconsistent with 

the seller's ownership. . . ." 

 The buyer's installation of the nonconforming cabinets 

constituted an "act inconsistent with the seller's ownership" and 

thus amounted to an acceptance of the goods under § 8.2-

606(1)(c). The buyer does not dispute this conclusion. Instead, 

the buyer contends that it properly revoked its acceptance of the 

cabinets because of their nonconformity to the plans and 

specifications. 

 The buyer had no right, however, to revoke the acceptance. 

The buyer, through its field superintendent and job 

superintendent, had full knowledge that the cabinets supplied by 

the seller did not conform to the plans and specifications. The 

consequences of an "acceptance" under these circumstances is 

clearly set forth in UCC § 8.2-607(2). The statute provides that 

a buyer's acceptance of goods "precludes rejection of the goods 

accepted and if made with knowledge of a nonconformity cannot be 

revoked because of it. . . ." In other words, revocation is 

unavailable for a nonconformity known to the buyer at the time of 

acceptance, except under circumstances not present here. See

Official Comment 2. 

 But § 8.2-607(2) also provides that "acceptance does not of 

itself impair any other remedy provided by this title for 
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nonconformity." The buyer contends that while acceptance of the 

cabinets entitles the seller to payment of the contract price of 

approximately $28,000, the nonconformity of the goods entitles 

the buyer to judgment on its cross-bill for approximately $47,000 

for the cost incurred to remove and replace the nonconforming 

cabinets. Thus, the issue arises whether the buyer is entitled 

to recover under its cross-bill. 

 The buyer based its cross-bill on only the "cover" remedy 

available under UCC §§ 8.2-711 and -712, which allow a buyer to 

recover for procurement of substitute goods. Under § 8.2-711, 

the "cover" remedy is available in four situations: when the 

seller "fails to make delivery;" when the seller "repudiates" the 

contract; when the buyer "rightfully rejects" the goods; and when 

the buyer "justifiably revokes acceptance" of the goods. None of 

those situations exists in this case, as the commissioner and the 

trial court properly ruled in denying the cross-bill. 

 Finally, we summarily reject the buyer's contention that the 

mechanic's lien was unenforceable. The buyer contends that 

because the materials were removed from the building before the 

memorandum was filed, the goods did not enhance the value of the 

building, thus making the lien invalid. 

 Code § 43-3 authorizes a lien in favor of "[a]ll persons 

performing labor or furnishing materials . . . for the 

construction . . . or improvement of any building." The seller 

furnished materials for this building project, and the cabinets 
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were delivered, accepted, installed, and added value to the 

structure. The fact that the cabinets were removed before the 

memorandum was filed is irrelevant. The legislature could not 

have intended that a supplier's mechanic's lien may be avoided 

simply by removing from the building the materials furnished and 

incorporated in it. 

 Consequently, we hold that the commissioner's factual 

findings confirmed by the trial court are not plainly wrong but 

are supported by credible evidence, and that the court's 

conclusions of law are correct. Thus, the judgment of the trial 

court will be 

Affirmed.