*1064 OPINION
This case came before the Court for oral argument on November 6, 2001, pursuant to an order that directed both parties to appear in order to show cause why the issues raised by this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the pаrties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time.
The facts in this casе are largely undisputed. The plaintiff, Stanley-Bostitch, Inc. (plaintiff), manufactures tools and related products. In 1987, Regenerative Environmental Equipment Co., Inc. (REECO), sent plaintiff a proposal (original proposal) to engineer, fabricate and install a re-therm thermal oxidation system for its manufacturing plant. The оriginal proposal contained boilerplate provisions describing the terms and conditions of sale. It also contained a clause providing fоr a price-adjustment in the event of inflation. The original proposal expired if not accepted in writing within sixty days. On August 11, 1987, REECO sent plaintiff a second propоsal relating to engineering services for the re-therm unit. The plaintiff sent a purchase order to REECO for the engineering services that contained an additional set of terms and conditions. REECO subsequently sent a memorandum to plaintiff, confirming receipt of the purchase order and advising plaintiff that the terms of the original proposal would govern instead of those on plaintiffs purchase order. The plaintiff signed and returned this memorandum ten days later. On November 9, 1987, well after the expiration of the original proposal, plaintiff issued a $1,094,000 purchase order for the re-therm system. REECO confirmed receipt of this order by memo-randa, but plaintiff neither signed nor returned it, as it had done with the previous confirmation. Within the body of the confirmation, REECO had inserted the following paragraph:
“as previously agreed * * * in lieu of the ‘TERMS’ noted on the reverse side of your purchase order, please refer to the ‘TERMS AND CONDITIONS OF SALE’ on the reverse side of the рrice quotation page of our proposal. Although the intent is similar, we believe those noted in our proposal to be more applicаble to the nature of the equipment to be supplied under this order and will, therefore, apply.”
REECO shipped the system in May 1988. The plaintiff subsequently paid REECO $1,094,000. REECO, howevеr, believing it was owed an additional $99,266 because of the price-adjustment clause in the original proposal, sent plaintiff an invoice to that effеct. The plaintiff refused to pay any additional compensation to REECO.
1
The defendant filed a demand for arbitration requesting $99,266 plus interest, costs and feеs. This Court eventually held that no agreement to arbitrate exists between the parties.
See Stanley-Bostitch, Inc. v. Regenerative Environmental Equipment Co.,
The parties filed cross-motions for summary judgment concerning whether the price-adjustment clause contained in REE-CO’s original proposal was part of the agreement between the parties. On May 9, 2000, the motion justice granted plaintiffs motion аnd denied defendant’s motion, determining that the price-adjustment clause was not an express or implied term of the contract. Moreover, the motion justice stated that the price-adjustment clause was a material change in terms that did not become part of the contract pursuant to § 6A-2-207(2)(b). The dеfendant timely appealed, arguing that the motion justice committed an error of law when she determined that the price-adjustment clause was not part of the parties’ contract.
“It is well settled that this Court reviews the granting of a summary judgment motion on a
de novo
basis.”
M & B Realty, Inc. v. Duval,
I
Incorporation by Reference
The defendant, James Mueller, first argues that REECO’s original proposal was incorporated by reference in the November 9 offer because the purchase order refers to the original proposal. We disagree.
“It has long been a general rule in this jurisdiction that instruments executed ‘at the same time, for the same purpose and in the course of the same transaction * * * are to be considered as one instrument and are to be read and construed together.’ ”
Rotelli v. Catanzaro,
II
Rhode Island Uniform Commercial Code
The defendant argues, alternatively, that the price-adjustment clause is part *1066 of the contrаct because it is an additional, non-material term in accordance with § 6A-2-207(2). We disagree.
According to § 6A-2-207(2), additional terms in an acceptance or confirmation of a contract are construed as “proposals for addition to the contract.” In contracts between merchants, hоwever, additional or different terms become part of a contract unless “[t]hey materially alter [the contract].” Id. Material alterations are those that “result in surprise or hardship if incorporated without express awareness by the other party.” Section 6A-2-207, comment 4.
Although we have not addressed directly whether price is a material term, in
Superior Boiler Works, Inc. v. R.J. Sanders, Inc.,
In the instant case, the price differential at issue is in excess of $99,000. This figure is approximately 10 percent of the initial purchasе order. Consequently, we conclude that the price-adjustment was so significant that, as a matter of law, the clause was a material alteration tо the contract under § 6A-2-207(2)(b).
For the reasons stated, the defendant’s appeal is denied and dismissed, and the judgment of the Superior Court is affirmed. The papеrs of the case are returned to the Superior Court.
Notes
. On September 20, 1991, REECO assigned all of its right, title, and interest in the contract to James Mueller (defendant). On Feb-ruaiy 24, 1993, the plaintiff’s complaint against REECO was dismissed without prejudice.