Marko, a sporting goods retailer, speaks on the phone with Wholesaler about buying 500 footballs….
Marko, a sporting goods retailer, speaks on the phone with Wholesaler about buying 500 footballs. After the conversation, Marko writes this message by hand: “Confi rming our discussion—you will deliver to us ‘Pro Bowl’ model footballs—$45 per unit—arrival our store no later than July 20 this year.” Marko signs and faxes the note to Wholesaler. Wholesaler reads the fax but then gets an order from Lana for the same model football at $51 per unit. Wholesaler never responds to Marko’s fax and sells his entire supply to Lana. Two weeks later, Marko is forced to pay more from another seller and sues Wholesaler. Marko argues that under merchant exception, his fax was suffi cient to satisfy the statute of frauds. Is he right?