168 F.3d 484 (4th Cir. 1999), 98-1155, Venture Media Ltd. Partnership v. Colt's Plastics Co., Inc.

Docket Nº:98-1155.
Citation:168 F.3d 484
Case Date:January 12, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 484

168 F.3d 484 (4th Cir. 1999)




No. 98-1155.

United States Court of Appeals, Fourth Circuit

January 12, 1999

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued Oct. 28, 1998.

Appeal from the United States District Court for the District of Maryland, at Baltimore, (CA-96-3970-JFM); J. Frederick Motz, Chief District Judge.

Michael David Fraidin, argued, Baltimore, Maryland, for Appellant.

George J. Kelly, Jr., Siegel, O'Connor, Schift & Zangari, P.C., argued, Hartford, CT, for Appellee.

David D. Gilliss, Niles, Barton & Wilmer, on the briefs, Baltimore, MD, for Appellee.

Before ERVIN and HAMILTON, Circuit Judges, and MOON, United States District Judge for the Western District of Virginia, sitting by designation.



Venture Media Limited Partnership (Venture) appeals the district court's grant of summary judgment in favor of Colt's Plastics Company, Inc. (Colt). For the reasons that follow, we now affirm.


Venture sells cosmetic products through direct-response marketing. 1 Colt manufactures and sells plastic containers for cosmetic products.

In 1994, Venture approached Colt seeking to purchase plastic containers for its line of cosmetic products. Meetings were held between representatives of both Colt and Venture, and the key decisionmakers for each company discussed the nature of Venture's business, the nature of Colt's business, how the two companies could work together, and whether Colt could supply containers to meet the projected volume of business anticipated from Venture's direct-response marketing campaign. According to Venture, credit terms were a large part of the discussions at these meetings and a primary factor in its decision to place orders with Colt. When all of these issues were settled, Venture began placing orders with Colt.

In its business, Colt uses a number of forms including a Quotation/Proposal Form (Proposal Form) and an Invoice Form (Invoice).

Colt's Proposal Form, which contains prices, is sent to all prospective purchasers. Copies of the Proposal Form were sent to Venture on numerous occasions. The back of the Proposal Form lists eighteen "General Conditions." (J.A. 375). Of these eighteen, eight are relevant to one or more of the issues on appeal. The first relevant condition states: "This quotation supersedes all previous quotations, and if accepted supersedes all previous agreements relating to the subject matter hereof." Id. The second relevant condition states: "This proposal may be accepted only by written purchase order...." Id. The third relevant condition states: "Shipping dates are approximate and established on the basis of normal conditions and continuous production." Id. The fifth and sixth relevant conditions state that there are no warranties except a warranty of "good and workmanlike quality" and that any claims for defects are waived unless "made within 30 days after receipt of merchandise." Id. The seventh relevant condition states that, at any time, Colt "may alter the credit terms herein stated...." Id. The eighth relevant condition establishes that the Proposal Form's terms are controlling and supersede conflicting terms, unless those conflicting terms are agreed to in writing by Colt.

Between 1994 and September 1995, Venture ordered from Colt, and Colt manufactured and shipped, plastic containers for Venture's cosmetic products. In conformity with the Proposal Form's terms, Venture placed orders with Colt using a purchase order. After manufacturing and shipping the plastic containers requested in the various purchase orders, Colt sent an Invoice to Venture requesting payment. The Invoice stated that payment was "due 30 days from the [I]nvoice date," and "amounts 30 days past due [were] subject" to twelve percent annual interest. (J.A. 380). This period of time passed with the two companies transacting business without incident.

However, in August and early September 1995, Venture felt as if there were problems. The deliveries were arriving late, and Colt refused to increase Venture's line of credit. To resolve these issues, Venture requested a meeting with Colt. At this meeting, Colt assured Venture it would resolve the concerns raised by Venture.

Based on these assurances, on September 21, 1995, Venture sent a purchase order to Colt for plastic containers totaling $339,996.25. The purchase order specified exact quantities, exact prices for each quantity, and the total price. 2 In addition...

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