PRESENT: Hassell, C.J., Keenan, Koontz, Lemons, and Goodwyn, 

JJ., and Stephenson and Russell, S.JJ. 

DELTA STAR, INC. 

 OPINION BY 

v. Record No. 071674 SENIOR JUSTICE ROSCOE B.STEPHENSON, JR. 

 September 12, 2008 

MICHAEL'S CARPET WORLD 

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

J. Leyburn Mosby, Jr., Judge 

 In this case governed by the Uniform Commercial Code –

Sales, Code §§ 8.2-101 et seq. (the UCC), we determine whether 

the trial court erred in failing to apply the UCC's Statute of 

Frauds, Code § 8.2-201, to declare unenforceable a purported 

oral contract for the sale of goods. 

I 

 Michael's Carpet World (Michael's) sued Delta Star, Inc. 

(Delta Star), seeking to recover the unpaid balance Michael's 

claimed was due on an alleged contract for the purchase and 

installation of flooring in offices of Delta Star. Delta Star 

responded that it had paid Michael's for the purchase and 

installation of flooring in its entryway and denied that there 

was a contract for the purchase and installation of flooring in 

two of its offices. Delta Star also filed a plea in bar 

contending that the alleged contract was not in writing as 

required by the Statute of Frauds and, therefore, was 

unenforceable. 
 The trial court heard the parties' evidence, found that 

Delta Star had breached the contract with Michael's, and entered 

judgment in favor of Michael's in the principal amount of 

$2,565.58. The court overruled Delta Star's Statute of Frauds 

defense, finding that the contract "satisfied several of the 

exceptions to the statute of frauds set forth in Code Section 

8.2-201." 

 We awarded Delta Star this appeal in which Delta Star 

contends that the trial court erred (1) "in ruling that the 

contract was enforceable under the statute of frauds on the 

theory that the goods at issue were specially manufactured;" (2) 

"in finding that there was a confirmatory writing establishing 

the existence of a contract for the purchase and installation of 

flooring [in the main office];" (3) in relying "on the customary 

manner of dealing between the parties to establish the existence 

of an enforceable contract;" (4) "in finding that three separate 

work orders constituted a single contract between the parties 

and by ruling that the purchase of the entryway carpet 

constituted part performance of such contract, thereby taking 

the contract out of the statute of frauds;" and (5) "in ruling 

that Delta Star, Inc. admitted in its testimony that there was a 

contract for the flooring in [the main office]." 

II 

2
 On April 22, 2006, Ivan Tepper, President and Chief 

Executive Officer of Delta Star, visited one of Michael's 

showrooms to view flooring options for his office, his executive 

assistant's office, and the entryway to the offices. Tepper was 

met by Tommy Martin, Michael's sales manager, and viewed the 

samples displayed in Michael's showroom. Tepper requested 

pricing information on the three types of flooring that he 

selected for the two offices and entryway. At that meeting, 

Tepper told Martin that his only contact at Delta Star would be 

Tepper's executive assistant, Donna Nash. 

 On April 25, 2006, Martin measured the three areas at Delta 

Star and submitted three written proposals describing the work 

to be done and the materials to be used for each area. On May 

2, 2006, Martin discussed with Nash revisions to the proposals. 

On that same day, revised proposals, together with a credit 

application, were sent to Nash. On May 5, 2006, Nash sent a 

credit application to Michael's seeking "90 days same as cash." 

All transmissions between the parties were made via facsimile. 

 The conditional sales contract forms used by Michael's were 

prepared on May 31, 2006, and contain a hand-written reference 

to "P.O. #T551" and the notation "Per Phone" in the block for 

the customer's signature. Delta Star sent Michael's, via 

facsimile, Purchase Order No. T-551, dated July 25, 2006, which 

3
contains a reference to "[c]arpet for entrance to lobby" and the 

price of $832.22. 

 Michael's completed installation of flooring in Delta 

Star's entryway and, on August 2, 2006, sent an invoice for 

$832.22. Nash told Martin to order the tile for the two offices 

and subsequently paid the invoice for the entryway flooring. 

Nash also told Martin that it was important to have the tile 

installed by early November 2006. When the materials arrived, 

Nash telephoned Martin and told him to install the flooring in 

her office, but not to install the flooring in Tepper's office. 

Martin responded that he could not do what Nash requested 

because the material had already been ordered. 

 Martin had never before ordered this type of flooring. The 

tile remains in Michael's warehouse. 

III 

 Code § 8.2-201 provides, in pertinent part, the following: 

 (1) Except as otherwise provided in this section 

a contract for the sale of goods for the price of $500 

or more is not enforceable by way of action or defense 

unless there is some writing sufficient to indicate 

that a contract for sale has been made between the 

parties and signed by the party against whom 

enforcement is sought or by his authorized agent or 

broker. . . . 

 (2) Between merchants if within a reasonable time 

a writing in confirmation of the contract and 

sufficient against the sender is received and the 

party receiving it has reason to know its contents, it 

satisfies the requirements of subsection (1) against 

such party unless written notice of objection to its 

4
contents is given within ten days after it is 

received. 

 (3) A contract which does not satisfy the 

requirements of subsection (1) but which is valid in 

other respects is enforceable 

 (a) if the goods are to be specially manufactured 

for the buyer and are not suitable for sale to others 

in the ordinary course of the seller's business and 

the seller, before notice of repudiation is received 

and under circumstances which reasonably indicate that 

the goods are for the buyer, has made either a 

substantial beginning of their manufacture or 

commitments for their procurement; or 

 (b) if the party against whom enforcement is 

sought admits in his pleading, testimony or otherwise 

in court that a contract for sale was made, but the 

contract is not enforceable under this provision 

beyond the quantity of goods admitted; or 

 (c) with respect to goods for which payment has 

been made and accepted or which have been received and 

accepted. 

 In the present case, no written contract that satisfies the 

requirements of subsection (1) of Code § 8.2-201 exists. 

Michael's, however, relies upon the exceptions set forth in Code 

§ 8.2-201(3). The trial court agreed with Michael's. 

IV 

 We first consider the trial court's finding that the 

flooring materials were "specially manufactured goods or 

products for [Delta Star] and not readily suitable for sale [to] 

others in the ordinary course of [Michael's] business." In so 

finding, the trial court relied upon our decision in Flowers 

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Baking Co. v. R-P Packaging, Inc., 229 Va. 370, 329 S.E.2d 462 

(1985). 

 In Flowers Baking Co., a bakery engaged a cellophanewrapping manufacturer to measure its cookie trays, determine the 

appropriate size for cellophane wrapping, and design artwork to 

be printed on the wrapping. The bakery's manager placed a 

verbal order for the wrapping, and the manufacturer sent the 

bakery a written acknowledgement of the order. 229 Va. at 372-

73, 329 S.E.2d at 463-64. Thereafter, the manufacturer sent a 

sample roll of unprinted wrapping to be tested for sizing on the 

bakery's packaging equipment, and the bakery subsequently told 

the manufacturer to proceed with the order. The next day, the 

parties met to discuss the proposed artwork. Later, the 

cellophane wrapping, printed with the bakery's logo, was 

delivered to the bakery. Id. at 373-74, 329 S.E.2d at 464. 

Approximately ten days after receipt of the wrapping, which 

conformed to the specifications of the order, the bakery's 

manager notified the manufacturer that the wrapping was too 

short and that the printing was not centered. The bakery 

returned the wrapping to the manufacturer, and the manufacturer 

brought a breach-of-contract action against the bakery. Id. at 

374, 329 S.E.2d at 464-65. This Court, relying upon Code § 8.2-

201(3)(a), held that the parties' oral contract was enforceable 

because the cellophane wrapping "was manufactured to the size 

6
required by [the bakery's] containers, was imprinted with [the 

bakery's] name and unique 'artwork,' and was completely produced 

by the [manufacturer]." Id. at 376-77, 329 S.E.2d at 466. 

 The trial court's reliance upon Flowers Baking Co. is 

misplaced because the facts of that case are distinguishable 

from the facts in the present case. In the present case, the 

flooring samples displayed in Michael's showroom are available 

to all customers, but all flooring materials selected by 

customers must be ordered directly from the manufacturer or 

distributor because Michael's keeps no inventory. The flooring 

materials chosen by Delta Star were selected from the samples 

displayed, were not altered in any way to suit only Delta Star, 

and were suitable for sale to others in Michael's ordinary 

course of business. Therefore, the flooring materials were not 

"specifically manufactured" for Delta Star, and the trial court 

erred in ruling that the parties' contract was enforceable under 

Code § 8.2-201(3)(a). 

V 

 We next consider the trial court's finding that there 

exists a confirmatory writing establishing an enforceable 

contract, under Code § 8.2-201(2), for the purchase and 

installation of flooring in Tepper's office. We do not agree 

that such a writing exists. 

7
 At trial, Michael's contended that its written proposals 

and its invoice for the purchase and installation of flooring in 

Delta Star's entryway constituted confirmatory writings. A 

"writing in confirmation of the contract" presupposes that there 

exists an oral agreement between the parties and necessarily 

follows the formation of such an agreement. The proposals, 

however, by definition, cannot constitute confirmatory writings 

because a proposal is an offer presented for acceptance or 

rejection. In submitting its proposals, Michael's sought to 

form a contract, rather than to confirm a contract.∗

 Michael's 

invoice for the entryway flooring also cannot serve as 

confirmation of a contract for the purchase and installation of 

flooring in Tepper's office. The invoice confirms only the 

parties' agreement with regard to the entryway flooring. 

VI 

 We now turn to the trial court's finding that an 

enforceable contract was established by the parties' course of 

dealing. Code § 8.2-202 provides, in pertinent part, that the 

"[t]erms with respect to which the confirmatory memoranda of the 

parties agree or which are otherwise set forth in a writing 

intended by the parties as a final expression of their agreement 

 ∗

 Similarly, the credit application submitted by Delta Star 

and Michael's sketches regarding the proposed installations 

cannot serve as confirmatory writings, contrary to the findings 

of the trial court. 

8
. . . may be explained or supplemented . . . by . . . course of 

dealing." Pursuant to Code § 8.2-202, therefore, the parties' 

course of dealing is relevant only to explain or supplement the 

terms of the parties' contract. The parties' course of dealing 

cannot establish the existence of a contract. Therefore, the 

trial court erred in finding that the parties' course of conduct 

established the existence of an enforceable contract. 

VII 

 Next, we consider the trial court's finding that there 

existed a single contract between the parties and that the 

installation of flooring in Delta Star's entryway constituted 

part performance thereof. Delta Star contends that, even if the 

present case involves a single contract, rather than three 

separate contracts, the purchase and installation of the 

entryway flooring "does not take this case out of the Statute of 

Frauds." We agree. 

 Pursuant to Code § 8.2-201(3)(c), a contract that is not 

evidenced by a sufficient writing is enforceable "with respect 

to goods for which payment has been made and accepted." In the 

present case, payment has been made and accepted for only the 

entryway flooring. Therefore, enforcement of any contract based 

upon part performance extends only to the entryway flooring and 

not to the purchase and installation of flooring in Tepper's 

office. 

9
VIII 

 Finally, we consider the trial court's ruling that Delta 

Star admitted in its testimony the existence of a contract for 

the purchase and installation of flooring in Tepper's office. 

At trial, Michael's contended that Nash's testimony regarding 

her attempt to cancel that portion of the alleged contract 

dealing with Tepper's office constituted an admission that a 

contract existed because "you can't cancel something unless 

you're admitting that you got a contract and you want to cancel 

it." Delta Star contends that Nash did not admit that there 

existed a contract for the purchase and installation of flooring 

in Tepper's office. 

 We agree with Delta Star. A review of Nash's trial 

testimony reveals that she stated that Delta Star "didn't want 

to act on the estimate [for Tepper's office]." Nash further 

stated that Delta Star "hadn't agreed to . . . order [the 

flooring for Tepper's office] yet." Therefore, Nash did not 

admit the existence of a contract for the purchase and 

installation of flooring in Tepper's office, and the trial court 

erred in holding otherwise and in declaring the contract 

enforceable under Code § 8.2-201(3)(b). 

IX 

 For the foregoing reasons, we hold that the trial court 

erred in overruling Delta Star's Statute of Frauds defense and 

10
11

in finding that an enforceable contract existed between 

Michael's and Delta Star for the purchase and installation of 

flooring in Tepper's office. Accordingly, we will reverse the 

judgment of the trial court and enter final judgment in favor of 

Delta Star. 

Reversed and final judgment.