J. B. Moore Elec. Contractor, Inc. v. Westinghouse Elec. Supply Co., 781676

• Citation: 273 S.E.2d 553,221 Va. 745
• Decision Date: 16 January 1981
• Docket Number: No. 781676,781676
• Parties: , 30 UCC Rep.Serv. 1224 J. B. MOORE ELECTRICAL CONTRACTOR, INC. v. WESTINGHOUSE ELECTRIC SUPPLY COMPANY. Record
• Court: Supreme Court of Virginia

Page 553

273 S.E.2d 553

221 Va. 745, 30 UCC Rep.Serv. 1224

J. B. MOORE ELECTRICAL CONTRACTOR, INC. v. WESTINGHOUSE ELECTRIC SUPPLY COMPANY.

Record No. 781676.

Supreme Court of Virginia.

Jan. 16, 1981.

J. C. Crumbley, III, Lynchburg, for appellant.

Robert E. Hawthorne, Roanoke (Wilson, Hawthorne & Vogel, Roanoke, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

COCHRAN, Justice.

Westinghouse Electric Supply Company (Wesco) initiated this action in the court below against J. B. Moore Electrical Contractor, Inc. (Moore), to recover the balance of $5,746.77 alleged to be due on a contract for the sale of electrical equipment. Moore denied liability and filed a counterclaim for $75,000 for damages alleged to have been caused by Wesco's failure to deliver the equipment within the time specified in the contract.

The threshold question whether the contract subjected Wesco to liability for delay in delivery was submitted to the trial court for determination. After considering the various writings relevant to the transaction and the arguments of counsel, the court, ruling in favor of Wesco, entered judgment in the amount sued for, with 8% interest from September 30, 1976, and dismissed Moore's counterclaim. Moore has appealed on the ground that the trial court misconstrued the contractual obligation of Wesco. There was no evidentiary hearing in the trial court, but a written statement of facts signed by the trial judge was made a part of the record under the provisions of Rule 5:9(c).

In the spring of 1972, Moore submitted a bid for a subcontract for delivery and installation of electrical equipment in a Fine Arts Center building to be constructed at Lynchburg College. Before doing so, it approached Wesco about the possibility of Wesco's supplying the electrical equipment needed for the project.

Moore's agent reviewed with Wesco's representative the plans and specifications for the subcontract, which contained a requirement for completion within 480 days of the starting date and a provision for liquidated damages to be assessed against the subcontractor for late completion. The Wesco representative filled out in handwriting and submitted to Moore's agent on May 25, ¹ 1972, a printed Wesco purchase order form providing for "Hub Stage lighting subject to plans and specifications" for the building at a price of $94,027.00. The Purchase Order contained a handwritten provision for cancellation without incurring cancellation charges if Moore should not be awarded the electrical subcontract. Printed at the bottom was this statement: "This Order is subject to the Company's acceptance at its office, and to the conditions on the back hereof". The reverse side of the form contained numerous printed provisions entitled "STANDARD CONDITIONS APPLYING TO ALL TRANSACTIONS", including the following:

"Shipping dates given in advance of actual shipment are estimated, and deliveries will be made subject to prior orders on file with us. We shall not be liable for delays resulting from fire, labor difficulties, transportation difficulties or delays in our usual sources of supply or, without limitation by the foregoing, any causes beyond our reasonable control. Receipt of goods shall constitute a waiver of all claims for delay.

"We shall not under any circumstances be liable for special, indirect, or consequential damages, whether arising from defects in products, delays in shipment, use or resale of products, or any other cause."

Moore's agent signed the Purchase Order for his company in the space designated on the front of the form for the purchaser's signature. There was no signature line on the form for use by Wesco. Counsel for Wesco stated several times on brief and in oral argument that the Purchase Order was signed by Moore's agent in Wesco's Lynchburg office and there presented to Wesco's representative. Counsel for Moore has never denied this statement, but has pointed out that the record does not show where the form was signed. The record also fails to show when Moore submitted its bid for the electrical subcontract, but Moore's counsel conceded in oral argument before us that the bid was based upon the firm price specified by Wesco in the Purchase Order. We will assume, therefore, that the bid was submitted after the signed Purchase Order was received in the Wesco office.

The subcontract was awarded to Moore on June 5, 1972, and by letter dated June 6, signed by the same agent who signed the Purchase Order, Moore so informed Wesco at its Lynchburg office and reaffirmed its intention to purchase the equipment specified in the Purchase Order. The letter contained this statement:

"We further call to your attention the following conditions of our contract and require your compliance thereto:

"1. Liquidated Damages (see Supplementary General Conditions). The starting date of our contract has been established as June 1, 1972 .... Delays caused by you which might result in the Liquidated Damage Clause being enforced will be charged to you."

On June 15, 1972, the Wesco Branch Manager, whose office was in Roanoke, wrote to Moore, thanked the company for the order, but stated, in reference to Moore's June 6 letter, that Wesco or Westinghouse Electric Corporation "will not accept liquidated damages under any circumstances." Moore replied by letter dated June 19 as follows:

"However, I must point out, by the specifications and your acceptance of this order, your company is subject to the specifications and if liquidated damages are incurred due to the negligence of your company ... then such charges will be the responsibility of your company."

Wesco did not respond to this letter. Neither Wesco nor Moore repudiated or cancelled the contract, and Wesco eventually delivered the electrical equipment. The court below assumed that some of the deliveries were late. Moore failed to complete its subcontract on schedule and was assessed by the general contractor the sum of $5,746.77 in liquidated damages for which Moore sought to hold Wesco responsible. After deducting the amount of the liquidated damages, Moore paid to Wesco the balance of the price specified in the Purchase Order.

In its written opinion the trial court noted that Wesco relied upon Code § 8.2-207 ² in arguing that Wesco and Moore entered into a contract that did not impose liability upon Wesco for liquidated damages. It appeared to the court "from the writings between the parties that Moore accepted the proposal" of Wesco to supply the materials and that the "acceptance was not 'expressly made conditional on assent to the additional or different terms' ", as provided in Code § 8.2-207. Acknowledging that Moore insisted that Wesco accept responsibility for consequential damages, the court concluded that Moore's writings failed to show that it was not accepting Wesco's proposal if Wesco declined to agree to the additional terms sought to be included, and that Wesco did not agree to the additional terms.

The court also was of opinion that even if Moore had expressly made its acceptance of the Wesco proposal subject to Wesco's agreement to be responsible for consequential damages, Wesco would not be liable because it had expressly eliminated such potential liability in its offer. Accordingly, under the court's alternative rationale, though there would be no contract "on the writings" because of the lack of agreement, by the conduct of the parties there would have been an implied contract for payment of Wesco's price upon acceptance by Moore of the electrical equipment delivered by Wesco.

Moore maintains that the trial court incorrectly concluded that its status in the transaction was that of the offeree. By the weight of authority, Moore says, one who orders from a seller is the offeror, and if Moore had been...