696 F.2d 315 (4th Cir. 1982), 82-1145, Mercury Coal & Coke, Inc. v. Mannesmann Pipe and Steel Corp.

Docket Nº:82-1145.
Citation:696 F.2d 315
Party Name:MERCURY COAL & COKE, INC., a West Virginia corporation, Appellee, v. MANNESMANN PIPE AND STEEL CORPORATION, a corporation, Appellant.
Case Date:December 22, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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696 F.2d 315 (4th Cir. 1982)

MERCURY COAL & COKE, INC., a West Virginia corporation, Appellee,

v.

MANNESMANN PIPE AND STEEL CORPORATION, a corporation, Appellant.

No. 82-1145.

United States Court of Appeals, Fourth Circuit

December 22, 1982

Argued Oct. 5, 1982.

William Rand, New York City (Coudert Brothers, New York City, Alfred J. Lemley, Furbee, Amos, Webb & Critchfield, Fairmont, W. Va., on brief), for appellant.

Joseph A. Laurita, Jr., Morgantown, W.Va. (James A. Kent, Jr., Morgantown, W. Va., on brief), for appellee.

Before WIDENER and SPROUSE, Circuit Judges, and BRYAN, Senior Circuit Judge.

ALBERT V. BRYAN, Senior Circuit Judge:

This appeal derives from an injunction issued by the Federal Court for the Northern District of West Virginia in the suit of Mercury Coal and Coke, Inc. (Mercury or seller), of West Virginia, against Mannesmann Pipe and Steel Company (Mannesmann

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or buyer), an international company with its principal American place of business in New York State. The order barred Mannesmann from suing in New York to recover damages for an alleged breach by Mercury of a contract for the purchase of coal by Mannesmann from Mercury.

The determinant issue is the enforceability of the contract provision that any controversy or claim relating to the purchase order or its breach shall be submitted to the Supreme Court of the State of New York for decision, but if the procedure therefor in that Court is not available, then to such other New York Court as is available and, further, the purchase order shall be construed according to the laws of New York. 1 Mannesmann now takes an appeal from the injunction. 2

We grant the appeal, uphold the clause, and at the same time dissolve the injunction, thus reversing the judgment of the District Court.

The facts are not in question. After negotiations during October 1980 in West Virginia, Mercury and Mannesmann consummated a contract of purchase and sale for more than 300,000 tons of coal. The buyer furnished printed forms for the contract. Each consisted of four pages, two of which were captioned "Purchase Order." The front side of each page displayed pre-printed headings as to product, quantity, penalties, delivery, and price. Wayne Fortney, President of Mercury, testified that he discussed and negotiated each of these terms with Mannesmann. After agreeing upon a term, the parties inserted the apposite material in the space following each heading.

On the reverse side of each page, however, there was printed "General Terms and Conditions of Purchase of Mannesmann Pipe and Steel Corporation." Beneath the title, the form contained a litany of provisions including an "integration clause," a section governing the buyer's remedies, and a clause on means of acceptance. More importantly, to repeat, paragraph 10 (supra fn. 1) stated that all disputes generated by the contract were to be resolved in the courts of New York.

Unlike the terms on the front of the forms, Mr. Fortney testified that he did not negotiate the terms on the reverse sides. He said this omission was caused by his inability to read the small type in...

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