McCarty v. Verson Allsteel Press Co.
| Decision Date | 25 September 1980 |
| Docket Number | No. 79-681,79-681 |
| Parties | , 44 Ill.Dec. 570, 30 UCC Rep.Serv. 440 William McCARTY, Plaintiff, v. VERSON ALLSTEEL PRESS CO., Defendant and Third Party Plaintiff-Appellee, v. NASH BROS. CO., Third Party Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Ruff & Grotefeld, Ltd., Chicago (John J. Reidy and Philip L. Noteboom, Chicago, of counsel), for plaintiff.
Lord, Bissell & Brook, Chicago (C. Roy Peterson, Richard E. Mueller and Hugh C. Griffin, Chicago, of counsel), for defendant and third party plaintiff-appellee.
The third party plaintiff was sued by an employee of the third party defendant who was injured while using a machine manufactured by the third party plaintiff. The third party plaintiff settled and sued the third party defendant claiming it was entitled to indemnification under a clause contained in its form sent along with its price quotation. The trial court, after a bench trial, found that the clause was part of the contract and entered judgment for third party plaintiff in the amount of $322,745.44. We disagree and reverse.
In early 1971, Nash Bros. Co. (hereinafter called buyer), and Verson Allsteel Press Company (hereinafter called seller), entered into oral negotiations regarding the sale of a punch press from the seller, Verson, as a manufacturer, to Nash, the buyer. These negotiations centered almost completely around the technical specifications of the subject punch press. At no time during this period of oral negotiation were any discussions had regarding the indemnification of seller by buyer for injuries caused by defects in seller's presses.
This offer was subject to thirty days' acceptance.
At the foot of the first page of the proposal was the legend: "All quotations, orders and contracts are subject to acceptance of home office."
Enclosed with the May 19th proposal was a copy of seller's form "Conditions of Sale-Machinery." In pertinent part, these provided:
(a) Subject to the other provisions of Verson's proposal and these conditions, Verson warrants all goods manufactured by Verson to be free from defects in material and workmanship for a period of one (1) year from the date of shipment. All goods sold hereunder not manufactured by Verson are warranted by Verson only to the extent provided by and enforceable against the manufacturer of such goods. Unless otherwise specified, wiring will conform to Verson's interpretation of the National Electrical Code. VERSON MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO RUBBER GOODS OR FIXTURES.
(b) Verson's obligation hereunder shall be limited to the replacement of such parts which examination shall disclose to the satisfaction of Verson to have been defective under ordinary and normal use, provided written notice of such defects shall be given by customer within thirty (30) days after they first appear. In no event shall Verson have any liability whatsoever for payment of any consequential, incidental, indirect or special damages of any kind, including but not limited to, any loss from profits. No allowance will be made for any expenses incurred by customer in repairing defective parts or supplying any missing parts, except on the written consent of Verson. In any case where Verson is effecting the replacement or repair of any defective parts, customer shall have the responsibility and bear all the costs of procuring and providing all necessary dismantling, reassembling and handling facilities in connection therewith.
(c) Customer assumes and shall bear all responsibility for providing adequate and sufficient safeguards, work handling tools and safety devices to protect fully the operator and any other users of the goods at all times, in accordance with the prevailing federal, state, and local codes and industry-accepted standards. Verson shall bear no liability whatsoever for the failure of customer to order, install, or use such safeguards, work handling tools or safety devices.
Customer shall establish and use, and require all persons operating the equipment to use, all proper and safe operating procedures, including but not limited to procedures set forth in any manuals or instruction sheets relating to the equipment. Customer shall not remove or modify any devices, warning sign, or manual furnished with, or installed upon or attached to the goods.
Customer hereby (1) waives, releases and discharges any and all claims of any and every kind (including but not limited to injury to or death of any person or damage to property), which it may have at any time against Verson, its agents or employees, by reason of or arising out of any claimed improper design, specifications or manufacture of the goods sold hereunder, or of devices; and (2) covenants to indemnify and hold-harmless Verson, its agents and employees of, from and against any and all loss, damage, expense, claims, suits or liability which Verson or any of its employees may sustain or incur at any time for or by reason of any injury to or death of any person or persons or damage to any property, arising out of any claimed improper design or manufacture of the goods sold hereunder, or of any claimed inadequate or insufficient safeguards or safety devices.
14. ACCEPTANCE-WHOLE AGREEMENT,
ALL ORDERS ARE VALID AND BINDING UPON VERSON ONLY UPON ACKNOWLEDGMENT BY A DULY AUTHORIZED OFFICER OR DEPARTMENT MANAGER OF VERSON, BY ANY ACKNOWLEDGMENT OR ACCEPTANCE BY CUSTOMER IN ANY MANNER OF VERSON'S PROPOSAL, OR BY THE SUBMISSION OR ISSUANCE OF CUSTOMER'S OWN PURCHASE ORDER BASED ON SUCH PROPOSAL, CUSTOMER UNCONDITIONALLY
ACCEPTS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN, SUCH TERMS AND CONDITIONS SHALL CONSTITUTE THE COMPLETE AGREEMENT BETWEEN CUSTOMER AND VERSON AND SHALL NOT BE SUPERSEDED BY ANY CONDITIONS OR PROVISIONS IN CUSTOMER'S ORDER WHICH MAY CONFLICT WITH, BE CONTRARY TO OR OTHERWISE VARY FROM THOSE HEREIN CONTAINED. ALL PREVIOUS COMMUNICATION BETWEEN THE PARTIES HERETO, WHETHER VERBAL OR WRITTEN, WITH REFERENCE TO THE SUBJECT MATTER HEREOF, IS HEREBY ABROGATED, IT BEING UNDERSTOOD THAT THERE ARE NO OTHER AGREEMENTS, UNDERSTANDINGS, GUARANTEES OR WARRANTIES WHATEVER, EXPRESS OR IMPLIED, EXCEPT AS CONTAINED IN VERSON'S PROPOSAL, AND THESE CONDITIONS.
Verson Allsteel Press Co."
On or about May 28, 1971 seller sent buyer its Proposal No. 5575-1-RB Revised. This document contained language almost identical to the May 19, 1971 proposal in its opening and conclusion. It also provided that the prices were subject to thirty days' acceptance and that all quotations, orders and contracts were subject to the acceptance of the home office. The enclosures included another copy of seller's "Conditions of Sale-Machinery." Various changes were made, however, in the "General Specifications" and "Included Items."
On June 8, 1971, seller sent buyer a letter, on its own stationery, reducing the price of the press which was the subject of its proposals. On the face of this letter was printed:
"All quotations, orders and contracts are subject to acceptance of home office and are contingent upon strikes, fires or other causes beyond our control."
Seller's "Conditions of Sale" were not included with this document and did not appear therein.
On June 16, 1971, buyer sent seller its form PURCHASE ORDER. On its face was typed:
"IN ACCORDANCE WITH YOUR QUOTATION PROPOSAL NO. 5575-1-RB REVISED AND LETTER DATED 6-8-71, WE WISH TO PURCHASE THE FOLLOWING:"
A detailed list of "General Specifications" and "Included Items" was then typed on each of 7 pages. On the front of each page was printed the following:
"This Purchase Order Is Subject To The Terms and Conditions Below and On The Reverse Side.
PLEASE ACKNOWLEDGE THIS ORDER AT ONCE UPON ATTACHED COPY. This order is not binding until accepted. This order shall become a binding contract when Vendor executes and returns the attached Acknowledgment copy or ships any of the items, or renders any of the services, ordered herein. When accepted, the terms and conditions on the face and reverse sides of this order will constitute the complete agreement between Purchaser and Vendor. No additional or different terms that may be contained in Vendor's forms or otherwise proposed by Vendor will be binding upon Purchaser unless accepted in writing signed by Purchaser.
On the back of each page were buyer's "Terms and Conditions." In pertinent part these provided:
"PURCHASE ORDER
1. ACCEPTANCE OF ORDER. This order is an offer to purchase upon the conditions and terms below and on the reverse side hereof and at the prices stated herein and may be withdrawn at any time prior to the actual receipt by Purchaser of Vendor's...
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