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[W] Toshiba Machine Co. v. SPM Flow Control6/2/2005
s finding that Addendum A was part of the contract.
b. Is There Any Evidence of Breach?
Next, Toshiba argues that there is no evidence to support the jury's finding that it breached the contracts. In the same subissue, Toshiba claims that its delivery of the BMC machines to SPM precludes a breach of contract claim, even if the machines were missing critical features. We disagree.
The remedies available to a buyer under the UCC depend on whether the buyer accepts or rejects the goods in question. See Tex. Bus. & Com. Code Ann. §§ 2.711, 2.714. If a buyer rejects goods (or revokes acceptance), the buyer is entitled to the remedies set forth in sections 2.711 and 2.713. Id. § 2.713 (Vernon 1994). If, on the other hand, a buyer accepts goods, the buyer's remedy is determined by section 2.714. Because a buyer cannot accept what a seller does not deliver, delivery of goods is a necessary predicate to acceptance or rejection; but delivery by itself does not determine the buyer's remedies. Assuming the seller delivers something, the buyer's acceptance or rejection determines the buyer's remedies.
It is undisputed that Toshiba delivered the BMC machines to SPM. The jury found that SPM rejected the BMC-800 and revoked its acceptance of the BMC-1000. The question, then, is whether SPM produced any evidence to support the jury's finding that Toshiba breached the contracts.
A seller breaches a contract if its delivery fails in any respect to conform to the contract. Id. § 2.601. This is sometimes referred to as the "perfect tender" rule. Tex. Imps. v. Allday, 649 S.W.2d 730, 737 (Tex. App.---Tyler 1983, writ ref'd n.r.e.). Conformity does not mean substantial performance; it means complete performance. Printing Ctr., Inc. v. Supermind Publ'g Co., 669 S.W.2d 779, 783 (Tex. App.---Houston [14th Dist.] 1984, no writ).
SPM identifies four specific contract items that Toshiba failed to deliver: the orbit boring software, tool lists and part programs, process cycle time studies, and a test run-off of a fluid end. SPM offered evidence that Toshiba failed to deliver these items. Except for the orbit boring software, Toshiba does not dispute its failure to deliver these items. Therefore, SPM produced at least some evidence to show that Toshiba's delivery did not conform to the contract in all respects.
We hold that Toshiba's delivery of the BMC machines does not preclude SPM's beach of contract claims and that there is some evidence to support the jury's findings that Toshiba breached the contracts. We overrule Toshiba's second issue.
3. Damages
Toshiba's first, fourth, sixth, seventh, and eleventh issues complain about various aspects of SPM's damages.
a. Is There Any Evidence to Support SPM's Lost Profits?
In issue 7a, Toshiba complains that there is no evidence to support SPM's claim of lost profits. In its closely-related issue 4, Toshiba complains that the trial court erred by admitting the testimony of SPM's damage witness, Ray Gilbert, on the question of lost profit. We disagree.
A party seeking to recover lost profits must prove the loss through competent evidence with reasonable certainty. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994); VingCard A.S. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847, 863 (Tex. App.---Fort Worth 2001, pet. denied). While this test is a flexible one in order to accommodate the myriad circumstances in which claims for lost profits arise, at a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Tex. Instruments,
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