Gilbert & Bennett Mfg. Co. v. Westinghouse Elec. Corp.
| Decision Date | 30 September 1977 |
| Docket Number | Civ. A. No. 75-2070-J. |
| Citation | 445 F. Supp. 537 |
| Court | U.S. District Court — District of Massachusetts |
| Parties | The GILBERT & BENNETT MANUFACTURING COMPANY, Plaintiff, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant. |
COPYRIGHT MATERIAL OMITTED
Warren G. Miller, Boston, Mass., for plaintiff.
John R. Hally, Nutter, McClennen & Fish, Boston, Mass., for defendant.
This case arises out of the sale of an electrostatic precipitator (trade name Precipitron), a pollution control device, by the defendant, Westinghouse Electric Corporation (Westinghouse), to the plaintiff, Gilbert & Bennett Manufacturing Company (G & B Co.). Plaintiff, G & B Co., is a Connecticut corporation having its principal place of business in Georgetown, Connecticut, and another plant in Blue Island, Illinois. Defendant, Westinghouse, is a Pennsylvania corporation having a usual place of business in Boston, Massachusetts. Plaintiff seeks to recover damages in the amount of $100,000 for breach of express and implied warranties assertedly arising out of the sales contract. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332.
At a pre-trial conference held on March 18, 1977, the Court, with the assent of both parties, ordered separate trials on the issues of liability and damages pursuant to Rule 42(b) of the Federal Rules of Civil Procedure. The issue of liability was tried by the Court sitting without a jury on April 25 through April 28, 1977. After considering the evidence, the pleadings, a pre-trial stipulation of facts and the pre-trial and post-trial briefs filed by counsel, the Court arrives at the following findings of fact and conclusions of law.
For many years prior to 1971, G & B Co.'s plant in Blue Island, Illinois, had been manufacturing metal fencing and fence posts. These fence posts were then shipped to the Coatings Engineering Corporation (CEC) plant in Massachusetts, which is a wholly owned subsidiary of G & B Co., where they were coated with a form of plastic, known as plastisol. In mid-1971, G & B Co. installed a plastisol coating operation at its Blue Island, Illinois, plant, under the supervision of James Knott, a college graduate who had majored in economics and had taken mechanical engineering courses. He had also been president and treasurer of CEC since its inception in 1956. The coating operation consisted of an overhead conveyor belt upon which the uncoated fence posts were suspended. The fence posts were first sprayed with plastisol, then conveyed into an oven heated at between 400 and 450 degrees Fahrenheit, and then passed through a cooling chamber where the coating hardened and formed a durable "skin" on the fence post. Plastisol is composed primarily of vinyl resin, plasticizers and color pigment. The mixture is not patented, and Knott testified that he has developed and worked with thousands of formulas of plastisol.
When the plastisol-coated fence posts were in the oven, some of the compounds found in the plastisol were driven off into the surrounding air by the extreme heat. The fumes thus emitted consisted of smoke and noxious odors.
Knott was familiar with the pollution problems caused by uncontrolled plastisol emissions; approximately one year earlier a thermal oxidizer1 had been installed at the CEC plant in Massachusetts, on Knott's recommendation, in order to allay neighborhood complaints about smoke and offensive odors emanating from the plant. Nevertheless, the plastisol coating line in Blue Island, Illinois, began operating at full capacity in September 1971 without the installation of any pollution control devices. On September 10, 1971, an employee from the Cook County Air Pollution Control Bureau visited G & B Co.'s Blue Island plant and informed the personnel there that a neighbor had complained about the smoke and odors coming from the plant.
As a result of this complaint Knott telephoned Westinghouse at its Sturtevant Division in Hyde Park, Massachusetts, in September 1971 to inquire about purchasing a Precipitron for G & B Co.'s coating operation. Knott had never seen a Precipitron, but he was familiar with the general principles by which it functioned. Knott was not aware of any plastisol coating plant which was using the Precipitron as a pollution control device. Knott spoke to Charles Perry, a salesman-engineer employed by Westinghouse. Perry does not possess a college degree and has no formal engineering training. He has sold Precipitrons since 1945, and estimated that by 1971 he had sold approximately 1,000 Precipitrons, including the larger PV series (which is the model involved in this litigation) and the smaller PO series. Most of his customers used the Precipitron to control oil mist in manufacturing plants. He had never sold a Precipitron to a customer who was interested in controlling plastisol fumes.
The Court finds that during this telephone conversation Knott informed Perry that G & B Co. was using plastisol to coat metal fence posts and that there was a pollution problem. He told Perry the volume and temperature of the polluted air. Knott did not tell Perry, and Perry did not inquire about, the velocity of the polluted air, the density of the plastisol contaminants in the air, or the chemical composition of plastisol emissions. Perry told Knott that he knew very little about plastisol fumes (although he recognized the phrase), and advised Knott to talk to a man named Harrison at the Dewey & Almy plant in Cambridge, Massachusetts, who would be able to inform Knott about the Precipitron's effectiveness in controlling plastisol emissions. Knott did not get in touch with Harrison until after G & B Co. had purchased the Precipitron. The evidence is conflicting regarding whether Perry said that there were 26 plastisol coating plants owned by Dewey & Almy Corporation which were using Precipitrons to control plastisol emissions, or whether Perry said that one of Dewey & Almy's 26 installations was using a Precipitron. The Court need not resolve this question.
On September 23, 1971, Perry followed up the telephone conversation by mailing to CEC, attention of Mr. Knott, at the CEC plant in Massachusetts, a quotation form (Exh. 1), three advertising brochures (Exhs. 2, 3 and 4), and a covering letter. Exhibit 1 (covering letter and quotation form) and Exhibits 2, 3 and 4 were received and read by Knott. The quotation form quoted prices for the PV-45 Precipitron having a maximum capacity of 6,660 cubic feet per minute of polluted air, and for the PV-46 unit having a maximum capacity of 8,000 cubic feet per minute of polluted air. The maximum capacities of the PV-45 and the PV-46 units bracketed the anticipated volume of air at G & B Co.'s Blue Island plant, which was 6,800 cubic feet per minute. One brochure (Exh. 2) stated that the Precipitron unit, when correctly sized to handle a specified quantity of air, should have an efficiency of 90% if the air did not exceed a specified velocity.2 Another advertising brochure (Exh. 3) states that the Precipitron is not designed to handle certain pollutants, including those which "dry out, oxidize readily, or form gums."3 The Court finds that the three advertising brochures (Exhs. 2, 3 and 4) state clearly that the primary function of the Precipitron was the elimination of oil mist in industrial plants. Knott testified that he had read the three brochures.
The quotation form, a one-page document with printing on both sides, contained the Westinghouse disclaimer of warranty and limitation of liability clauses, which will be discussed later. On the reverse side of the quotation form (Exh. 1) appears the following statement:
"Quotations . . . are subject to acceptance within 30 days from date of quotation."
The purchase price for the PV-46 was quoted at $3,150. Perry's covering letter, which is stapled to the quotation form, mentions that the quotations were for a Precipitron "to handle plastisol fumes."
Further negotiations, including Exhibit 5, led to a reduction in the purchase price of the Precipitron PV-46 unit from $3,150 to $2,850. On November 4, 1971, G & B Co. in Blue Island, Illinois, mailed a purchase order (Exh. 6) to Westinghouse's Boston office, attention of Mr. Perry, which states:
On November 10, 1971, Westinghouse mailed to G & B Co. in Blue Island, Illinois, an "Acknowledgment of Order" (Exh. 7). It was received by plaintiff on November 12, 1971. It is a one-page document with typewritten and printed matter on the front side and printed matter on the reverse side. The disclaimer of warranties clause appears on the front side in conspicuous type, and on the reverse side appears the limitation of liability clause. These clauses were also printed in the same type on Westinghouse's quotation (Exh. 1). The clauses on the front side read as follows:
To continue reading
Request your trial
-
Logan Equipment Corp. v. Simon Aerials, Inc.
...or underlining, the clarity of the clause, and the sophistication of the contracting parties. Gilbert & Bennett Mfg. Co. v. Westinghouse Electric Corp., 445 F.Supp. 537, 547 (D.Mass.1977). In this case, each of the eight acknowledgements stated in readable boldface on its front that the ord......
-
Lambert v. Kysar
...another person in understanding that his assent to that bargain is invited and will conclude it"); Gilbert & Bennett Mfg. Co. v. Westinghouse Elec. Corp., 445 F.Supp. 537, 544 (D.Mass.1977) ("an offer is made when the offeror leads the offeree to reasonably believe that an offer has been ma......
-
Delano Growers' Co-op. Winery v. Supreme Wine Co., Inc.
...§ 2-314(2)(a). See Vincent v. Nicholas E. Tsiknas Co., 337 Mass. 726, 729, 151 N.E.2d 263 (1958); Gilbert & Bennett Mfg. Co. v. Westinghouse Elec. Corp., 445 F.Supp. 537, 548 (D.Mass.1977). The contract in this case required Delano to deliver "finished wine" to Supreme. Delano contends that......
-
Uniroyal, Inc. v. Chambers Gasket & Mfg. Co.
...to the new terms. Roto-Lith, Ltd. v. F. P. Bartlett & Co. (1st Cir. 1962) 297 F.2d 497. See also Gilbert & Bennett Mfg. Co. v. Westinghouse Electric Corp. (D.Mass.1977) 445 F.Supp. 537; Beech Aircraft Corp. v. Flexible Tubing Corp. (D.Conn.1967) 270 F.Supp. Roto-Lith, supra, involved a purp......