Lambert v. Kysar

• Citation: 983 F.2d 1110
• Decision Date: 07 May 1992
• Docket Number: Nos. 91-2244,92-1029,s. 91-2244
• Parties: 19 UCC Rep.Serv.2d 979 George LAMBERT, d/b/a Rainbow Fruit, Plaintiff, Appellant, v. Sam KYSAR and Joan Kysar, d/b/a Lewis River Tree Farm, Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1110

983 F.2d 1110

19 UCC Rep.Serv.2d 979

George LAMBERT, d/b/a Rainbow Fruit, Plaintiff, Appellant, v. Sam KYSAR and Joan Kysar, d/b/a Lewis River Tree Farm Defendants, Appellees.

Nos. 91-2244, 92-1029.

United States Court of Appeals First Circuit.

Heard May 7, 1992.

Decided Jan. 13, 1993.

Brian A. Gillis with whom Parker, Coulter, Daley & White, Boston, MA, was on brief for plaintiff, appellant.

James A. G. Hamilton with whom Perkins, Smith & Cohen, Boston, MA, was on brief for defendants, appellees.

Before CYR, Circuit Judge, CAMPBELL, Senior Circuit Judge, and FUSTE, ^* District Judge.

CYR, Circuit Judge.

George Lambert appeals a district court order dismissing his lawsuit for improper venue. We affirm.

I BACKGROUND

Appellant Lambert owns and operates the Rainbow Fruit Company in Boston, Massachusetts, which sells Christmas trees and wreaths at retail during the holiday season. Appellees Sam and Joan Kysar operate a Christmas tree farm in Woodland, Washington. From 1987 through 1989, Lambert purchased Christmas trees at wholesale from the Kysars pursuant to a written form contract signed by both parties. The front of the order form contained spaces in which the size, grade, quantity, and price of each Christmas tree order could be filled in; a small space at the bottom of the page, denominated "other", was used by the parties to note additional "[t]he terms and conditions of the order documents applicable to this transaction shall be interpreted under the case and statutory law of the State of Washington. In the event any action is brought to enforce such terms and conditions, venue shall lie exclusively in Clark County, Washington."

                terms and conditions.   The back of the order form stated the fixed terms of the contract and provided, inter alia, that
                

In July 1989, the Kysars visited Boston to discuss Lambert's needs for the upcoming Christmas season. On their return to Washington, they sent Lambert an order form, filled out and signed by Joan Kysar. The numbers handwritten on the form by Joan Kysar provided for an order of 2600 Christmas trees at $11.60 apiece. At the bottom of the form, in the space marked "other", Kysar wrote that the order was "[b]ased on 4 loads of 650 trees each. All trucks will be loaded to capacity. 25% deposit ... balance due on or before 12/10/89."

Lambert received the order form in late July, but apparently thought that it overstated the quantity of trees needed for the next season. Writing on the same order form submitted by the Kysars, he changed the notation "4 loads of 650 trees each," to read "3 loads of 550 trees", and changed the total number ordered from "2600" to "1650." Lambert also recomputed the total amount due and the amount of the required 25% deposit. He inserted the new figures over Joan Kysar's handwritten figures at the bottom of the form, and returned the form to the Kysars. He made no change to the $11.60 unit price or to any other contract provision.

On August 21, 1989, in a letter to Sam and Jean Kysar, Lambert enclosed a $4785 check "for payment of the deposit on our tree order", and stated his understanding "that shipping will be the same as last year. There will be three loads of 1,650 trees at $11.60 for a total cost of $19,140." The record on appeal does not indicate whether the Kysars received Lambert's letter, cashed his deposit check, or issued any written response, but on November 20, 25 and 29, in accordance with the instructions on the altered order form, the Kysars sent Lambert the requested 1,650 trees, in three loads, by overland truck. Following delivery of the trees on November 25, 29, and December 1, Lambert's inspection allegedly revealed that the trees "were dry, not fresh, and appeared old." Citing the allegedly defective condition of the trees, Lambert refused to pay the balance claimed by the Kysars.

In June, 1991, the Kysars filed suit in Clark County, Washington, to recover the balance claimed due. In September, 1991, Lambert filed the present countersuit against the Kysars in Massachusetts Superior Court, alleging misrepresentation, breach of contract, breach of implied warranty, and unfair business practices under Mass.Gen.L. ch. 93A. The Kysars removed Lambert's suit to federal district court and moved to dismiss under Federal Rules 12(b)(3) and 12(b)(6), alleging improper venue and failure to state a claim on which relief could be granted. ¹

On November 18, 1991, the motion to dismiss was granted without hearing, by margin order: "[The defendants'] motion to dismiss is allowed. According to the terms of contract[,] suit must be filed in State Court in Washington." We review the district court dismissal order de novo. See Edwards v. John Hancock Mut. Life Ins. Co., 973 F.2d 1027, 1028 (1st Cir.1992); see also Instrumentation Assocs., Inc. v. Madsen Electronics (Canada) Ltd., 859 F.2d 4, 5 (3d Cir.1988) (de novo review of forum selection clause dismissal under Rule 12(b)(6)); compare, e.g., Pelleport Investors, Inc. v. Budco Quality Theatres, 741 F.2d 273, 280 n. 4 (9th Cir.1984)

("abuse of discretion" review of forum selection clause dismissal under Rule 12(b)(3)).

II DISCUSSION

The order form filled out by Joan Kysar, and amended by Lambert in July 1989, provided, inter alia, that "[i]n the event any action is brought to enforce [the] terms and conditions [of the order documents], venue shall lie exclusively in Clark County, Washington." The Kysars assert, and the district court impliedly found, that the order form expressed the terms and conditions of the agreement between the parties and that Lambert is bound by the choice of forum made in the order form. Lambert vigorously disagrees. According to Lambert, the changes he made to the quantity term on the Kysars' order form amounted to a material alteration (and therefore a rejection) of the Kysar offer, paving the way for a counteroffer in the form of Lambert's August 21 letter. Since the August 21 letter contained neither a forum selection clause nor an express choice-of-law provision, Lambert asserts that venue and choice-of-law rules are to be determined under general common-law and statutory principles. In particular, Lambert asserts, the Massachusetts venue remains proper under the general rules applicable to removed cases in federal courts, i.e., 28 U.S.C. § 1441. ²

We agree with the first part of Lambert's argument. The changes Lambert made to the quantity term amounted to a rejection under Article 2 of the Uniform Commercial Code, and the Kysars' performance of the new contract amounted to an acceptance of the new terms proposed by Lambert. We disagree with the second part of Lambert's argument, however. Lambert's counteroffer was made in July, when he amended the order form containing the Kysars' original offer, not in Lambert's August 21 letter. Accordingly, the counteroffer incorporated the unamended terms and conditions contained in the original offer, including its venue and choice-of-law clauses. Since the venue clause--impliedly mandating a Washington forum--is enforceable under both state and federal common law, the district court properly dismissed the action.

A. The Contract

The parties disagree on whether a Massachusetts court would apply Massachusetts or Washington law to the formation of their contract. See Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (federal court sitting in diversity must apply forum state's choice-of-law rules). We need not resolve the issue, however, as the outcome is the same under the substantive law of either jurisdiction. See Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 332, 450 N.E.2d 581, 584 (1983) ("the usual first step in applying conflict of laws principles is to determine whether there is a conflict among the laws of the various states involved").

Christmas trees are "goods" within the meaning of Uniform Commercial Code, Article II, as adopted in both Massachusetts and Washington. ³ Moreover, the common law of both jurisdictions, which remains in force under the U.C.C. except as displaced, see U.C.C. 1-103, Mass.Gen.L. ch. 106 § 1-103, Wash.Rev.Code 62A.2-103, supports the validity and enforceability of the subject contract, including its forum selection clause.

Under the law of both Massachusetts and Washington, the order form (signed and forwarded to Lambert in July 1989) comprised an offer to contract in accordance with its terms. ⁴ It set forth in detail all the material terms essential to the proposed transaction, including the price, quantity and quality of the goods. It provided a space for Lambert's signature, to indicate that he had "read and accept[ed] the Terms of Sale on the reverse side of th[e] document." It included the signature of Joan Kysar, an officer of Lewis River Tree Farm, indicating assent to be bound. See Restatement (Second) of Contracts § 24 (offer is "manifestation of willingness to enter into a bargain, so made as to justify 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 made"). Although the back of the form included a provision for "approval" by the Lewis River Tree Farm's "main office", Joan Kysar's status as an officer of the company and her signature on the front of the form reasonably denoted such approval. Compare Kuzmeskus v. Pickup Motor Co., 330 Mass. 490, 493, 115 N.E.2d 461, 464 (1953) (contract proffered by company's general manager, which contained clause requiring authorization by seller's corporate officer, and blank space for officer's signature, held to be "no more than an invitation or request to give orders on the terms and conditions therein stated"; "[i]f the general manager was an officer of the company with power to authorize the sales, he said or did nothing...