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Contracts Keyed to Fuller
Diamond Fruit Growers, Inc. v. Krack Corp.
Citation:
794 F.2d 1440 (1986)Facts
For approximately ten years, Krack Corporation purchased steel tubing from Metal-Matic for use in manufacturing cooling units. The parties followed a consistent course of dealing where Krack would send annual blanket purchase orders followed by release purchase orders throughout the year. Metal-Matic would respond with acknowledgment forms containing disclaimers of liability for consequential damages and limiting its liability to refund, replacement, or repair. These forms expressly conditioned acceptance on Krack’s assent to Metal-Matic’s terms. Krack’s purchasing manager had discussed these terms with Metal-Matic’s Executive Vice President, objecting to them, but Metal-Matic refused to change them. Nevertheless, Krack continued to accept and pay for the tubing. In 1981, Krack sold a cooling unit to Diamond Fruit Growers, which later developed a leak in the cooling coil, causing ammonia to leak into Diamond’s controlled-atmosphere warehouse. Diamond sued Krack for damages, and Krack sought contribution from Metal-Matic, claiming the tubing was defective.
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