digEcor argues that e.Digital has breached the PO (PURCHASE ORDER ) by not delivering any of the 1250 Li-on
batteries that digEcor paid for. e.Digital does not deny that it failed to provide batteries to
digEcor, nor does e.Digital deny that digEcor has paid for them. Accordingly, a summary
judgment in favor of digEcor on its claim that e.Digital is in breach of the PO by not providing
batteries is warranted.
A judgment that digEcor is entitled to the purchase price of the batteries is also
appropriate. To the extent that digEcor also seeks consequential damages on for failure to
deliver the batteries, that claim presents a factual issue that, on this record, cannot be decided on
summary judgment.
That e.Digital is not excused as a matter of law, however, does not mean that digEcor is
automatically entitled to a finding of breach. That is because even assuming that e.Digital was
under a duty to deliver the digEplayer 5500s, there is a dispute as to the date by which they were
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required to be delivered. digEcor does not dispute that its own actions in failing to timely
provide specifications excused e.Digital from meeting the PO’s listed ship date of January 10,
2006.
In sum, digEcor is granted a judgment that e.Digital breached a contract to provide 1250
Li-on batteries and that it is entitled to a refund of the batteries’ purchase price. Consequential
damages as a result of this breach are a factual question. In contrast, disputed questions of fact
mean that both parties are denied judgment on their claims regarding the breach of the PO for
e.Digital’s delayed delivery of the digEplayer 5500s.
