831 F.2d 333 (1st Cir. 1987), 87-1064, Binkley Co. v. Eastern Tank, Inc.

Docket Nº:87-1064, 87-1718.
Citation:831 F.2d 333
Party Name:The BINKLEY COMPANY, Plaintiff, Appellant, v. EASTERN TANK, INC., Defendant, Appellee.
Case Date:October 09, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 333

831 F.2d 333 (1st Cir. 1987)

The BINKLEY COMPANY, Plaintiff, Appellant,


EASTERN TANK, INC., Defendant, Appellee.

Nos. 87-1064, 87-1718.

United States Court of Appeals, First Circuit

October 9, 1987

Heard June 3, 1987.

Page 334

Kevin F. Moloney with whom Mitchell J. Notis, Ilana M. Quirk and Barron & Stadfeld, Boston, Mass., were on brief, for plaintiff, appellant.

David H. Gibbs, P.C. with whom Robert A. Whitney, Peabody & Brown and Lola Dickerman, Boston, Mass., were on brief, for defendant, appellee.

Before COFFIN, DAVIS [*] and SELYA, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal in a diversity contract action between the Binkley Company (Binkley or appellant), a Missouri corporation, and Eastern Tank, Inc. (Eastern or appellee), a Massachusetts corporation. Binkley, the seller, claimed that Eastern had wrongly repudiated a contract for the sale of 2,178 caster assemblies at an approximate price of $200.00 each. The United States District Court for the District of Massachusetts (Skinner, J.) granted Eastern's motion for summary judgment. Binkley later filed a Motion for Reconsideration or Clarification, which the District Court denied. Binkley appeals, claiming that the District Court abused its discretion granting summary judgment against it and by denying the Motion for Reconsideration or Clarification. We affirm.

I. Background

On August 29, 1984 Binkley submitted a price quotation to Eastern for the sale of 1,195 caster assemblies at a price of $238.00 each. From that date through January 1985, the dealings between the parties became a "battle of the forms" (as the District Court put it).

Binkley sent Eastern the price quotation on appellant's standard quotation form which provided:


This quotation does not constitute an offer of sale but is an invitation to buyer to forward a firm order by executing the order form on the reverse side hereof and returning the buyer's quotation copy attached hereto. No contract of sale for the materials and items listed on the reverse side hereof shall be held to exist until buyer's order is accepted by seller's written acknowledgement. The contract of sale shall be subject solely to the terms and conditions of said written acknowledgement as are hereinafter set forth:

Negotiations subsequently ensued between Thomas McDowell, Binkley's regional sales manager for its Transportation Products Division, and Jay Davidson, purchasing agent for Eastern. After some negotiations, Binkley sent Eastern acknowledgement forms on December 13, 1984 reflecting appellant's acknowledgement of the newly-negotiated terms: 2,178 caster assemblies at $200.12 per unit. The form specifically provided:

The Binkley Company, as seller, acknowledges receipt of buyer's order, as shown on the reverse side hereof. The acceptance of buyer's order, however, is expressly made conditional on buyer's assent to the terms and conditions stated below and on the reverse side hereof. The Binkley Company, as seller, hereby agrees to furnish the materials and items listed on the reverse side hereof solely upon these terms and conditions.






1. The acceptance of Buyer's Order is expressly made conditional on Buyer's assent to the terms and conditions herein contained which may be additional to or different from those contained in Buyer's purchase order or any other form or document heretofore or hereafter supplied by Buyer to Seller. Buyer's assent to such terms and conditions shall be presumed to have been given unless Buyer's written objections thereto are received

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by Seller within ten (10) days from Buyer's receipt of this acknowledgement form.

On December 19, 1984 Binkley submitted a revised quotation for the 2,178 caster assemblies containing the same terms and price as stated in the Binkley December 13 Acknowledgement Form. Although Binkley requested that Eastern execute and remit the "Buyer's Quotation Copy" of either the original or revised Binkley quotation, John J. Davidson of Eastern instead sent Binkley an Eastern purchase order dated December 7, 1984. This purchase order was for 2,178 caster assemblies at $200.12 each, for a total price of $435,861.36. The purchase order consisted of two sheets: a top white copy and a second yellow acknowledgement copy. On its face, the purchase order stated:

This purchase contract expressly limits acceptance to the terms and conditions stated herein, set forth on the reverse side hereof and any supplementary or additional terms and conditions annexed hereto or incorporated herein by reference. Any additional or different terms and conditions proposed by seller are objected to and hereby rejected.

A termination clause on the reverse side of Eastern's purchase order provided:


The Buyer shall have the right to terminate this contract or any part thereof at any time: (a) Without Cause--In case of termination by the Buyer of all or any part of this contract without cause, any termination claim must be submitted to the Buyer within ten (10) days after the effective date of termination.

On the face of the Eastern purchase order the acknowledgment section appeared as follows:


On January 4, 1985 appellee (Eastern) received an acknowledgment copy of the purchase order. The blanks had been filled in and the acknowledgment was signed by "T. McDowell" and dated January 2, 1985.

It was Binkley's normal business practice at that time to respond to a customer's purchase order form by sending an acknowledgement from Binkley's sales department in Warrington, Missouri. Such an acknowledgement form was also sent to Eastern in...

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