Binkley Co. v. Eastern Tank, Inc.
| Citation | 831 F.2d 333 |
| Decision Date | 03 June 1987 |
| Docket Number | 87-1718,Nos. 87-1064,s. 87-1064 |
| Parties | The BINKLEY COMPANY, Plaintiff, Appellant, v. EASTERN TANK, INC., Defendant, Appellee. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
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.
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.
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:
CONDITIONS OF SALE
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.
By
Title:
Date:
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 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:
by Seller within ten (10) days from Buyer's receipt of this acknowledgement form.
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:
Termination
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:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
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 response to its purchase order.
Binkley shipped the first ten units of caster assemblies to Eastern on January 4, 1985 and followed this up by sending Eastern its standard invoice on January 7, 1985. The Binkley invoice specifically provided for the same conditions of sale as contained in Binkley's acknowledgement form. Eastern made no objections to the terms and conditions on either the invoice or on Binkley's acknowledgement form.
On February 19, 1985 Binkley received notice from Eastern to hold shipments of the caster assembly units until further notice. On October 16, 1985 Binkley wrote to Eastern and demanded assurance that Eastern would perform its contractual obligations. On October 31, 1985 Eastern notified Binkley that it was terminating the contract pursuant to the terms and conditions of the purchase order.
On November 4, 1985 Binkley's counsel presented Eastern a claim for damages due to termination of the contract. 1 Binkley sent a second letter to Eastern on January 9, 1986. No settlement was agreed upon by the parties, and Binkley filed this suit in District Court against Eastern on March 26, 1986.
Binkley filed a two-count complaint in the District Court seeking $267,499.11 in damages from Eastern for wrongful termination of contract. Count I essentially alleged that the cancellation clause in Eastern's purchase order was not controlling because McDowell, who signed the purchase order, had no authority to bind Binkley to the Contract. Count II is said by Binkley to have asserted in the alternative Eastern filed a Motion to Dismiss the Complaint under Fed.R.Civ.P. 12(b)(6) or, alternatively, for Summary Judgment under Fed.R.Civ.P. 56. Eastern argued that its purchase order form controlled the transaction between the parties and that under it Eastern could terminate the contract without cause. On July 31, 1986 the District Court granted Eastern's motion for summary judgment. An entry recording the granting of summary judgment and the "closing" of the case was made on the docket and notice was sent to each party.
that, even if the Eastern purchase order did control the transaction between the parties, Eastern wrongly repudiated the contract under its terms. 2
In determining that Eastern was entitled to summary judgment, the District Court noted that Binkley's Tom McDowell had signed and returned the acknowledgement of Eastern's purchase order which contained the termination clause. Although Binkley submitted an affidavit stating that Mr. McDowell's authority extended only to negotiating the terms of the party's contract and not to agreeing as to its termination, the District Court ruled that Mr. McDowell was clothed with apparent authority as to termination provisions. The court reasoned that, as regional sales manager of appellant's Transportation Products Division, McDowell had been placed in a position where it would have been usual for him to have the authority to negotiate both the terms of the contract as well as to execute the writing. The District Court also relied on Blanchard Lumber Co. v. Maher, 250 Mass. 159, 145 N.E. 62 (1924), which held that, absent any evidence offered by the principal that a salesman's agency has been limited, the salesman's ostensible powers when dealing with a buyer are his real powers. Id. at 163, 145 N.E. 62. The court then concluded that McDowell had the apparent authority to contract on behalf of appellant Binkley and had bound it to the terms of Eastern's cancellation clause by signing and returning the purchase order to appellee. The District Court's decision was docketed on July 31, 1986.
On August 22, 1986, Binkley filed a Motion for Reconsideration or, in the alternative, for Clarification of the court's decision granting summary judgment. The District Court denied appellant's motion without opinion or explanation on November 25, 1986. Binkley first appealed the District Court's denial of its motion, claiming that the court abused its discretion in refusing to reconsider or clarify the July 31, 1986 grant of summary judgment. 3 Binkley argued first, that the District Court resolved genuine issues of material fact, thus exceeding its authority in determining a Rule 56 summary judgment motion;...
To continue reading
Request your trial
-
Jalbert v. Timothy Grautski
...on that authorization, the third-party may hold the principal to the consequences of such reliance. See Binkley Co. v. Eastern Tank, Inc., 831 F.2d 333, 337-38 (1st Cir.1987); RESTATEMENT (THIRD) OF AGENCY, § 2.03 (2006) ("Apparent authority is the power held by an agent ... to affect a pri......
-
Aca Financial Guaranty Corp. v. Advest, Inc.
...of discretion." Council of Ins. Agents & Brokers v. Juarbe-Jiménez, 443 F.3d 103, 111 (1st Cir.2006) (quoting Binkley Co. v. E. Tank, Inc., 831 F.2d 333, 337 (1st Cir.1987)) (internal quotation marks omitted); see also Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 190 (1st Cir.2004). ......
-
Putnam v. DeRosa
...(citing Hudson v. Massachusetts Property Ins. Underwriting Ass'n, 386 Mass. 450, 436 N.E.2d 155, 159 (1982)); Binkley Co. v. Eastern Tank, Inc., 831 F.2d 333, 337 (1st Cir.1987); De Vaux, 444 N.E.2d at 358. After all, one could reasonably expect that a salesman seeking a mortgage applicatio......
-
Scholz v. Goudreau
...whether Boch had "apparent authority"), were not exclusively relevant to Boch's "actual authority." See id.; cf. Binkley Co. v. E. Tank, Inc., 831 F.2d 333, 338 (1st Cir. 1987) (finding that a seller's agent had apparent authority to execute a provision for termination of a contract in ligh......