Under Maryland law, parties may modify a written contract through course of conduct or under principles of estoppel. See, e.g., Morris & Ritchie Assocs. v. H&H Rock, LLC, No. 1824, Sept. Term, 2016, 2018 WL 679878, at * (Md. Ct. Spec. App. 2003) ("Parties may modify a contract by mutual consent, which can be shown by the parties' conduct.") (citing DirecTV, Inc. v. Mattingly, 376 Md. 302, 318 (Md. 2003)); see also Tatum v. Richter, 280 Md. 332, 336 (Md. 1977) (found that where a car dealer's own action "induced" a buyer to accept an alternative car worked a modification to the original contract to include the alternative car); Patriot Constr. v. Vk Elec. Servs., 257 Md.App. 245 (Md.App. Ct. 2023) (modification found after conduct by contractor indicated payment); Leaf Co. v. Montgomery County, 70 Md.App. 170 (Md. Ct. Spec. App. 1970) (modification based on principles of estoppel).
Finally, while identification of the goods to the contract is essential to the passage of title under 42a-2-201, delivery to the purchaser is not. Tatum v. Richter, 280 Md. 332, 336-37, 373 A.2d 923 (1977); Holstein v. Greenwich Yacht Sales, Inc., 122 R.I. 211, 216, 404 A.2d 842 (1979). We have no basis, on this record, for overturning the trial court's determination that the transfer of title to these two yachts occurred in this state.
Maryland law recognizes that a series of communications can satisfy the Statute's requirements. See Tatum v. Richter, 280 Md. 332, 335-36, 373 A.2d 923 (1977) (holding that a purchase order and bill of sale established the existence of an oral contract and satisfied the Statute). In addition, e-mail communications can amount to a sufficient writing under the Statute.
In conjunction with the other evidence, these circumstances may have reasonably indicated that an effort to cover the fire truck would have been unavailing, at least without extraordinary expense, delay, the risk of loss of the money already paid Hamerly, and the risk that Hamerly would not be able to satisfy damages incurred in obtaining cover. Cf. Tatum v. Richter, 280 Md. 332, 373 A.2d 923 (1977) (buyer entitled to replevin where he paid $15,000 of $17,500 toward a specially-ordered car identified to the contract because buyer "unable to effect cover and there was no other way to protect himself against loss of his deposit"). As the tone of the foregoing discussion has no doubt indicated, if we knew that the trial court had accepted the Volunteer Fire Department's evidence as credible, we should consider ourselves able to conclude that the Department had satisfied the cover requirement, and, as a buyer in ordinary course of business, was entitled to possession of the fire truck.
International Harvester Credit Corp. v. Associates Financial Servs. Co., 133 Ga. App. 488, 493-494 (1974). Tatum v. Richter, 280 Md. 332, 337 (1977). It is not to be imagined that Garneau, a consumer, could simply have dropped by the dealer to pick up a house.
With the passage of time, specific performance becomes disfavored. For example, because goods are subject to a rapid change in condition, or the cost of maintenance of the goods is important, time may be found to have been of the essence, and even a month's delay may defeat specific performance (see, delayed transfer of cattle, Ziebarth v Kalenze, 238 N.W.2d 261 [ND 1976]; Putnam Ranches v Corkle, 189 Neb. 533, 203 N.W.2d 502), notwithstanding that risk of loss under title concepts is generally irrelevant under the UCC, which considers whether an item has been identified to a contract (see, Tatum v Richter, 280 Md. 332, 336-337, 373 A.2d 923, replevin of a Ferrari; William F. Wilke, Inc. v Cummins Diesel Engines, 252 Md. 611, 250 A.2d 886). Even absent such special circumstances, with a greater delay, where a defendant has changed position or taken any economic risk, the court may conclude that "the plaintiff will lose nothing but an uncontemplated opportunity to gather a windfall" (Concert Radio v GAF Corp., 108 A.D.2d 273, 278 [1st Dept 1985], affd 73 N.Y.2d 766).