Placer Coal, Inc. v. Rhondale Coal Services Co.

GUDGEL, Judge,

dissenting:

I respectfully dissent. In my opinion, KRS 355.2-401(4) does not apply to this case.

Title to the disputed coal passed to Rhon-dale upon delivery at Placer’s dock. The majority concludes, however, that because Rhondale could not pay for the coal, and orally attempted to disclaim ownership of it, title to it revested in Prichard and Dennis Dean by operation of law pursuant to KRS 355.2-401(4). I cannot agree with this conclusion.

As I perceive the matter KRS 355.2-401(4) is applicable to cases where a buyer of goods has rejected delivery of them, or has made a proper revocation of acceptance, because they are deficient in some respect. The statute was not intended to apply to cases where the buyer is merely unable to pay for the goods.

Here, Rhondale did not reject or revoke acceptance of the coal because it was deficient in any respect. It merely was unable to pay for the coal. Therefore, title to the coal never revested in Prichard and Dennis Dean by virtue of KRS 355.2-401(4). Thus, KRS 355.2-702(2) is the statute which governs the parties’ rights. Because appellees failed to make demand for return of the coal within ten days after its delivery, their claim to title to the coal must fail.

Accordingly, I would reverse the court’s judgment with directions that it enter a judgment in favor of Placer.