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Contracts Keyed to Marshall
Luria Bros. & Co. v. Pielet Bros. Scrap Iron & Metal, Inc.
Citation:
600 F.2d 103 (1979)Facts
In the ordinary course of business when Luria makes a purchase of scrap, information regarding the purchase is typed or written on its own purchase confirmation form. On or about October 4, 1973, Forlani caused to be prepared a purchase confirmation containing the same terms as in Pielet’s form, except with respect to the delivery date and mode of shipment. The delivery date typed on the form was by October 31, 1973 and the mode of shipment appeared to be left to the discretion of Luria. On the reverse side of this form are printed standard terms including ones referring to warranties, insurance, and taxes, as well as one stating “This order constitutes the entire contract between the parties.” The original and one copy of this form are sent to the seller. These bear in red letters the words “RETURN ACCEPTANCE COPY IMMEDIATELY” in the lower right hand corner. There were no other words on this document to indicate any condition as to the existence of a contract. Forlani sent the original and a copy of the October 4th purchase confirmation to Bloom. Bloom testified that upon receipt of this document, he immediately or shortly thereafter called Forlani to inform him that the Luria confirmation was erroneous with respect to delivery date and mode of shipment. Forlani agreed that the confirmation was erroneous in these two particulars. Bloom asked Forlani to send him an amendment correcting these errors, but Forlani never did. Neither Bloom nor any other officer or employee of Pielet ever signed or returned the acceptance copy to Luria. Pielet never delivered the scrap.
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