### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE September 4,

2001 Session RICKY RIDDLE,

ET AL 

### . v. HEARTLAND NURSERY COMPANY Appeal from the Circuit Court for Franklin County No. 11,175-CV Buddy D. Perry, Judge

No. M2000-02190-COA-R3-CV - Filed November 2, 2001

In this act ion to collect the p urchase price f

or the sale of nur

sery stock,

the buyer a

lleged that t

h e goods did notconform to the contract and that the number of units delivered was significantly short of the number specif

ied in the invoice.

The buyer a

lso file d a counterclaim for the damage to its professional reputation resul ting from the sell

er’s breach. T

he Circuit Court of F

ranklin County resolved all the issues in favor of the seller and rendered judgment for the balance

of the purchase price. Because we find that the buyer had accepted the goods and failed to carry his burden of proving that they

were defectiv

e, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM B. C AIN , J. and D ON R. A SH S P .J., joined.
Mar k St ewar t, W inc hes ter , Te nne sse e, fo r th e app ell ant , He art lan d Nu rse ry Co mpa ny. Gregory M. O’Neal , Wi nchester, Tennessee, for the appellee, Ricky Riddle, d/b/a R & R Nurser y & Landscaping.
OPINION
I. Ricky Riddle runs a nursery

business in Winchester under the name of R & R Nursery and Landsc aping . In October of 1997, Mr. E. B. Gee of H

eartland Nurse

ry in New Ma

drid, Missouri, visited Mr. Riddle’s nursery and inspected his growing stand of white, pink, and red dog wood trees. The trees varied in height from twelve to thirty-six

inches. Mr. Gee liked what he saw and told Mr. Riddle that he would take all of thedogwoods Mr. Riddle had available. Mr. Gee made a deposit of $5,000, but the parties disagree about the terms for p ayment of the ba lance. At this advanced stage of the litig

ation, we find tha

t the paymen

t terms are immate

rial.-2-

In January of 1998, Mr. Gee told Mr . Riddle to dig the plants and have them ready for transport. Mr. Riddle proceeded to dig, sort, cull and bundle the p lants, and approximately two weeks later Mr. Gee sent a truck to pick up the goods. He arrived early in the morning

and took one load to a destination in Alabama, and then returned that afternoon for the balance of the shipment. Mr. Gee himself helped load and count the plants, which had been sorted and bundle

d according to color and size. He signed the invoice showing the number and type of plants received. The sales price amounted to $40,183.75, leaving a balance of $35,183.75 after crediting Mr. Gee’s $5,000 down payment. Mr. Riddle testified that Mr. Gee said he had left his checkbook at home, but that he would send a check when he got back to Missouri. Mr. Gee says th at the custom in the t

rade is to wait until the buyer knowshow many plants will grow in the spring. Nevertheless, three or four months later, Mr. Gee finally returned one of Mr. Riddle’s telephone calls a

nd said that some

of the plants had died and that there w as a shortage in the count. In June, Mr. Gee sent Mr. Riddle a check for $14,628.00, claiming that that amount represented the balance due after deducting the price of the missing trees and the on es that died . In September, Mr. Riddle filed this action to collect the balance.
II.
The key factual question in this case is whether Mr. Gee accepted the g

oods. Under Artic

le 2 of the Uniform Commercial Code “acceptance” of goods by the buyer is a term of art. Because of the legal consequences that result from a buyer’s accepta nce of goods identified to the contract, the code is careful to def

ine when accep

tance occurs.

Tenn. Code Ann. § 47-2-606(1) says that a buyer has accepted the goods if he has done a ny of the follo wing: (a) after

a reasonable op

portunity to inspect the goods signifies to the seller that the goods are conf

orming or that he

will take or reta

in them in

spite of their nonconformity; or (b) fails to make an effective rejection (§ 47-2-602(1)), but such acceptance does n otoccur until the buy

er has had a rea

sonable opportuni

ty to insp ect them ; or (c) does any act inc

onsistent with th

e s eller’s ownersh

ip; but if such act is wrongful as ag

ainst the seller it i

s an acceptanc

e only if ra

tified by him.
Mr. Gee could make an argumen t that he di d not accept the goods on February 2, 1998 because he did not have a reasonable opportunity to inspect them. We recognize that possession has littleto do with acceptance and that a buyer may have possession of the goods for a substan ti al period of time

before he has accepted them. See J. White and R. Summers, Uniform Commercial Code , § 8-2 (4th ed. 1995) ; Moses v. Newman , 658 S.W.2d 119 (Tenn. Ct. App. 1983). But in this case, despite any reservations he may have had, Mr. Gee took possession of the goods and immediately

resold them. According to his testimony , he sold the load in Alabama on the day he took possession; he deli

vered another lo

t to a nu rsery in Mc

Minnville on the next d

ay, and re sold-3-

the rest within a few days after returning to Missouri. His buy ers replanted the trees and waited for them to grow in the spri ng.
We think all of that amounts to acts that are inconsistent with Mr. Riddle’s owner ship

. Therefore, Mr. Gee accepted the goods under Tenn. Code Ann. § 47-2-606(1)(c). While White and Summers find 2-606 (1)(c) troub ling, and recommend that it be applied only when the buyer is aware of the nonconformity

and takes action t

hat is inconsistentwith the seller’s rights (such as reselling the goods after learning they are de fective), see J. White and R. Summers, Uni form Commercial Code , § 8-2 (4th ed. 1995), we think that under the circumstances of this case the act of reselling the goods amounted to acceptance. See Commonwealth Prop ane Co. v. Petrosol International, Inc. , 818 F.2d522 (6th Cir. 1987). It may be that Mr. Gee’s haste in rese lling the goods prevented him from discovering that

some of the trees were too short or too tall or that some were crooked. It is true that neither he nor his buyers would know which trees would grow in the spring, but by shipping them to various states Mr. Gee created such practical difficulties for Mr. Riddle that Mr. Gee should be held to have accepted the goods. We acknowledge that there are similar cases that have come to the opposite conclusion, see Jacob Hartz Seed Co. v. Coleman , 612 S.W.2d 91 (Ark. 1981), but in that case the original seller was able to recover the seeds and test

them. In this case there is no way Mr. Riddle could identify the trees he sold in order to contest the claim that they were defective.
III.
One of the consequences of accepting goods is the obligation to pay for them. Tenn. Code Ann. § 47-2-607 (1). But all is not necessarily lost for the buy er. Where th e buyer has accepted defectivegoods, he may recover as damage s the l oss resulting from the seller’s breach “as determinedin any manner which i s reasonable.” Tenn. Code Ann. § 47-2-714(1). The buyer’ s damages may include incidental and consequential damag es. Tenn. Code Ann. § 47-2-714(3). However, when a buyer accepts goods, he also assumes the burde n of proof to establish any breach with respect to the goods accepted. Tenn. Code Ann. § 47-2-607(4). In a case like this, that burden is a heavy one

for the buyer to carry

, because no one knows for sure how many plants Mr. Gee delivered t

o his buyers n

or what caused th

e plants to

die. The buy

er with the highest number of dead trees testified that theway the pla nts were handled after they left their origin proba bly caused themto die. Mr. Gee testified that his workers took the plants back to Missouri, stored them for a few days, and then boxed

them before shipping them by common carrier to his buy er. There was no proof from Mr. Gee’s other

two buyers.

He testified that h

e gave them ce

rtain credits, but even he does not know what t

he truth is with res

pect to the actua

l count or the cond

ition of the plants.
Mr. Gee has failed to

carry his b

urden of showing

any breac

h with resp ect to the goods accepted. The invoice he signed when he took delivery establishes the number and the price of each type of plant he received. The seller is therefore entitled to be paid for the goods identified in the invoice.-4-

The judgment of the court below is affirmed and the cause is remanded to the Circuit Court of Franklin County for any

further procee

dings necessar

y. Tax the cos

ts on appeal to the a

ppellant, Hear tla nd N urs ery C omp any.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.