*1 Mаnufacturing Uniroyal, Chambers Gasket Company; Thrush Products September 2-476A127.Filed [No. 1978.] *2 Jr., J. Thomas J. Fell and Eugene McGarvey, Trauring, McGarvey, Kokomo, of for appellant. Glassman, Illinois, Rabens, Rabens,
George C. Formusa & of Chicago, Co.; Keith, Keith, Russell T. for appellee Mfg. Chambers Gasket & Keith, Peru, Berkshire & for Thrush appellee Products. (Thrush) J. Thrush Products that requested Chambers Sullivan, (Chambers) Manufacturing Company gaskets Gasket and fabricate for in reducing use the manufacture and sale of valves. pressure normally The material used in such fabrication was unavailable. Therefore, Uniroyal, (Uniroyal), inquired supplier Chambers material, of raw whether there existed a reasonable substitute and if so, be with a supplied sample. responded Chambers a substitute was indeed available and a of such material was sample submitted, although there is some conflict whether the was sent sample event, directly any to Thrush or routed to Thrush. In through Chambers Thrush, after fabricated from the was satisfied testing gasket sample, Chambers, and notified begin process. the fabrication turn, Uniroyal, mailed a order to purchase specifying quantity desired, therefor, shipment. material and the date for price order with an replied purchase Acknowledgment” “Order stated:
“WE AND THANK YOUR ACKNOWLEDGE YOU FOR ORDER. OUR THE ACCEPTANCE OF ORDER IS CONDITIONAL ON THE BUYER’S THE OF ACCEPTANCE CONDITIONS OF SALE PRINTED THE ON REVERSE SIDE IF HEREOF. BUYER DOES SALE, NOT THESE ACCEPT HE CONDITIONS OF SHALL (7) NOTIFY SELLER IN WRITING WITHIN SEVEN DAYS AFTER OF THIS RECEIPT ACKNOWLEDGMENT.” The “Conditions of Sale” on the reverse side provided, pertinent part: 1. The Seller’s products guaranteed any are not specific length service,
of time or measure of but are only warranted to be free material, from defects in workmanship and and all goods shall be subject to seller’s normal manufacturing tolerances. There are no warranties, fitness, express or implied, merchantability, or other- wise which beyond extend those stated in the immediately sentence name, code, size, prior absence, to this one and the or or in their other identifying designation of goods, performance exclusive of characteristics, contained in the description appearing on Seller’s form, absence, quotation or in its Buyer’s on Purchase Order form. Buyer’s exclusive remedy for breach of warranty is limited merchandise, to a purchase refund of the price of оr at the *3 Seller’s option, to replacement upon its return. no cir- Under cumstances shall the Seller be responsible for consequential damages. No claim for warranty breach of herein shall be considered (30)
unless in delivered writing to the Seller thirty within days after date of delivery of the first shipment with respect to which claim is made.
This procedure was employed by the parties each time a new order was placed, by followed shipment delivery of the goods. defective, thereafter determined the gaskets to be and in- itiated suit against Chambers for breach of express and implied war- ranties. Chambers Third-Party filed a complaint against Uniroyal, pur- Procedure, suant to additiоn, Ind. Rules of Trial Rule and in “vouched- in” under provisions Code,1 of the Uniform Commercial claiming right indemnity in the event Chambers was found liable 26-1-2-607(5)(a)(Burns 1974). Hereinafter, 1. IC Ed. Code reference to the Uniform adopted citing Commercial Code Indiana will be chapter indicated and sec numbers, 2-607(5)(a), e.g., tion which be found in 26-1. § IC however, Uniroyal, to Thrush. did not accept Chambers’ tender of its and, trial, defense. The trial of the two claims was severed after the first Thereafter, Thrush recovered judgment against Chambers. both summary moved for judgment on the indem- claim, nity and the trial court granted judgment Chambers’ favor. us, from that appeal judgment, now before claims sixteen errors, specific validity most which are related to the of the “Cоndi- warranties, tions of Sale” which purported disclaim establish a time breach, limit notice of an alleged and limit liability to a refund of the purchase price. Uniroyal alleges further ir- procedural regularities as reversible error.
CONTRACT FORMATION manner, The case before us presents, in classic the “battle of the forms” —an issue which requires that we determine whether so, writings parties created a contract if the terms of that contract.
The trial court and the parties seem to concede the applicability of 2-207,2but the arguments and decision below reflect a fundamental provides: 2-207 “(1) expression acceptance A definite and seasonable or a written confirma- оperates acceptance though tion which is sent within a reasonable time it states terms acceptance as an even agreed upon, to or from additional different those offered or unless expressly is made conditional on assent to the additional or different terms. “(2) proposals The additional terms are to be construed as for addition to the part contract. Between merchants such terms become of the contract unless:
“(a) offer; expressly the offer limits terms (b) it; they materially alter or (c) objection already given given notification of to them has been or is within
a reasonable time after notice of them is received. (3) parties rеcognize Conduct both the existence of a contract is suffi- although writings parties cient to establish a contract for sale do not *4 particular otherwise establish a contract. In such case the terms of the contract writings parties agree, together consist of those terms on which the of the with any supplementary incorporated provisions terms under other of this act.” dispute parties appeal meaning There is no that the to this are within the “merchants” of 2-104. § Therefore, of that statute. of the and effect misunderstanding purpose forma- contract briefly the basic of common-law principles we discuss rules. of those modification and the Uniform Commercial Code’s tion common-law, a con to constitute acceptance “for an offer and an At tract, every with the in offer correspond the must meet acceptance beyond pro- terms neither within nor falling going
respect, points all and clos posed, exactly at meeting but terms] [those (1957), 127 just they with them as stand.” v. Petri ing Gates 293, 297. 670, 143 which the terms N.E.2d An varies App. acceptance Ind. counter-offer, aas rejection operates of the offer is considered a without original performing offeror accepted be in the terms contained the counter-offer. objection under “mirror- designed 2-207 was alter common-law specifically § Nordstrom, The the Law rule. Handbook Sales image” § with recognized practice, especially drafters commercial forms, and “ac printed the terms “offer” advent They recognized were the same. further seldom ceptance” were of the con- to a commercial transaction seldom aware parties they ex- flicting printed terms and conditions contained in the forms of an changed. designed 2-207 was therefore to allow enforcement § if en- acceptance, between offer and agreement despite discrepancies to a required party being forcement could be without either bound Co., Inc. v. agreed. material term to which he has not American Parts 156,154 5,12. (1967), 8 N.W.2d Mich.App. American Arbitration Assoc. parties, In order to effect to the 2-207 give expectations § "... a recognizes that deal which commercial understand- proposed has in fact been closed is as a Uniform ing recognized contract.” 2-207, Thus, Commercial Code Official Comment “[a] expression acceptance... operates definite and seasonable as an even it states terms additional to or different acceptance though 2-207(1). or If a is agreed recog- from those offered contract upon...” nized sub-section terms in the are under additional which, as between proposals treated additions the contract merchants, condi- part become of the contract unless certain specified 2-207(2). proposals tions render inoperative. § *5 However, if an acceptance is conditioned on the expressly offeror’s terms, new assent the and no assent is forthcoming, the “entire trans (6th 1972), action aborts.” Dorton v. Aikman Corp. Collins & Cir. 1161, 1166; Tankers, 453 F.2d Falcon Inc. v. Litton Systems, 1976), 898, 906. Inc. (Del.Super. words, 355 A.2d In other “... the of consequence a clause conditioning acceptance on assent to the addi tional or different terms is that as of writings, the there is no contract.” Sales and Bulk Deusenberg King, & Yet § 3.06[3][a] Transfers if parties’ conduct recognizes the by existence of a contract perfor (see 2-204,2-206) mance it is sufficient to establish a contract sale. §§ сase, In such the terms of the contract are those on which the writings parties agree, together with supplemental provisions of the Code.3 2-207(3). (4th 1973). also, See Williston on Sales 7-5 Ed. § § framework,
In the context of analytic this we our begin considera- tion of the present by appeal examining the findings of the trial court: Motions, Exhibits, “I. The following facts from the appear Af-
fidavits, Memoranda, herein, Depositions, and Briefs filed and from the evidence adduced at the trial upon Complaint Thrush Chambers, vs. to be agreed or upon established without gen- uine issue thereon:
A. At all times pertinent Uniroyal has manufactured and sold materials to by Chambers which were cut it and sold and delivered to Thrush.
B. The materials purсhased by Chambers from Uniroyal were by resold Chambers to Thrush in the form of the diaphragms which by were cut Chambers.
C. That the materials purchased by Chambers from Uniroyal were for use in the assembly manufacture and of pressure reduc- ing by valves Thrush. D. That the material was by recommended being as suitable for by use Thrush in assembly and manufacture of valves for it and for resale to customers of Thrush. (“Unless (“Unless ...”), example, 3. For 2-308 agreed otherwise § 2-314 § excluded (“Unless ...”), (“Unless ..”),
or modified agreed 2-319 otherwise . § 2-511 otherwise (“Unless ...”), ...”), agreed agreed 2-513 otherwise provi- as well as numerous other sions of the Code. out of the materials manufactured diaphragms, E. That Chambers, Thrush as understood by used thereupon were parties. intended all sаmples conform to the did not F. some the materials That substantially by Uniroyal and were not furnished
originally kind thereof. quality same permit- defects which
G. That the materials contained latent in the valves assembled leakage ted of water and ineffective use by Thrush. damages
H. resulted both That *6 the any result of defects in materials. [sic] $4,076.56, I. Thrush has of the amount damage That sustained by damages gaskets, consequential for the and resultant or paid $11,737.05, $15,813.61 of in the amount of a total direct result defective, intended, gaskets being of the unfit for the use and in by varying samples Uniroyal. from furnished originally in legally upon J. was justified relying That Chambers defective, Uniroyal to it with which were not were supply materials in with were conformance of merchantable samples, quality, subject by in the Uniroyal were to reasonable care inspection testing purpose discovering thereof for of defects therein. Thrush, K. has That since Chambers been found liable to in costs, $15,813.61 Uniroyal the amount of is to plus liable Chambers damages by but not amount sustained Thrush. of L. not in-depth That Chambers did make an or individual by of testing Uniroyal, the material sold to it but did inspection of quality inspection gasket make usual cut diaphragms by it and sold and delivered to Thrush. M. of of the liability provisions That Limitation con- [sic] unconscionable, Uniroyal
tract between Chambers and is and is operative not under the parties.4 the contract between
N. was a to respect That Chambers is and merchant with its Uniroyal purchase contracts with for the of the materials. liability” to phrase denote apparently used the “limitation 4. The trial court (30) thirty days delivery. Compare “Find- within requiring notice of breach provision V”, as a “Finding properly M” is denominated Conclu- “Finding infra. more ing T” with of Law. sion Uniroyal express- offer from purchase O. That to Chambers’ limited to terms of the offer. ly materially altered Uniroyal’s
P. That terms and conditions the contract.5
Q. by Uniroyal That of the materials sold to Chambers some industry in the grade type normally were of a used not of quality. and some were the same gaskets, manufacture by Uniroyal to R. That some of the materials sold Chambers standards, industry not. met and some did by Uniroyal to S. That some of the sold Chambers materials оrdered, not. conformed to the merchandise and some did by alleged not T. That was notified Chambers of an thirty days delivery after of the breach of their contract within by within a time after but was notified reasonable goods, Chambers in the by the defects appearing was notified Thrush of Chambers by from furnished gaskets field made materials to Chambers Uniroyal. Mo- by 2 on 13 of suggested Page
U. That as Item liability is to Summary Judgment, tion for Chambers merchan- to a of the defective purchase price limited refund by Uniroyal pursuant That furnished dise. since the materials were in the manufac- intermingled different orders return of all the manufactured thus gaskets, requiring ture Chambers, is entitled gaskets that Chambers $5,737.70, the full recovery only from rather than *7 $15,813.61. of judgment against amount Thrush’s Chambers Party filed Gasket “II. Third Chambers Complaint That the Inc., relief claim which upon states a Manufacturing Company, granted.”6 be can be recon- which cannot contain inconsistencies findings
These of fact limited have expressly to was found to purchase offer ciled. Chambers’ order purchase to of that offer. Yet Chambers’ the terms acceptance Indeed, record thorough review of the so indicate. a nothing contains to for such a determination. no factual foundation reveals mysterious may be a member of that conclusion of law or “finding” This be a finding conclusion of law. species mixed of fact and and elusive —the law.” clearly “conclusiоn of appear to be the trial court’s would 6. This Uniroyal’s that disclaimer of warranties The trial court also found because it was an additional inoperative in its of Sale” was “Conditions The “materially provision requiring term which altered” contract. (30) thirty days within from notice of claim for breach of contract Finally, the trial court delivery inexplicably was held “unconscionable.” Uniroyal’s liability limitation of valid and provision found contractual 4, supra. See footnote operative. if, fact, offer had limited expressly
We first note that Chambers’ offer, Uniroyal’s the terms of the Sale” “Conditions acceptance contract, Mfg. Tunis would not be as terms of the incorporated 1091, Knitting v. Allen Mills 87 Misc.2d Corp. N.Y.S.2d for the continues to allow an offeror to be Code 2-207(2)(a). King, supra, & Deusenberg the “master of his offer.” See Thus, Uniroyal’s disclaimer of warranties and limitation of § 3.06[2]. ineffective, provision limiting notice for breach would be as would its liability.
However, noted, previously there is no factual basis in the record finding offer limited support expressly Chambers’ only to the terms of the offer. order contained terms purchase Chambers’ hand, Uniroyal’s date. the other “ac- price, quantity shipment On Acknowledgment” contained an which we think im- ceptance” “Order to restate here: portant
“WE
AND THANK
ACKNOWLEDGE
YOU FOR YOUR ORDER.
THE
IS
OUR ACCEPTANCE OF
ORDER
CONDITIONAL ON
THE BUYER’S
THE
SALE
ACCEPTANCE OF
CONDITIONS OF
PRINTED ON THE REVERSE SIDE
IF
HEREOF.
BUYER DOES
SALE,
THESE
HE
NOT ACCEPT
CONDITIONS OF
SHALL
(7)
IN
WITHIN
NOTIFY SELLER
WRITING
SEVEN
DAYS
AFTER
OF THIS
RECEIPT
ACKNOWLEDGMENT.”
was
conditional on
as-
“acceptance”
expressly
Chambers’
sent to the terms contained in thе
of Sale.” A few cases
“Conditions
conclusion,
circumstance,
which would seem to
in such
require
exist
was in
“acceptance”
fact a “counter-offer”
delivery
goods
failing
object
accepted
taking
(1st
1962),
Roto-Lith,
Ltd. v. F. P. Bartlett
Co. &
to the new terms.
Cir.
Westinghouse
Bennett
Co. v.
Elec-
Mfg.
Gilbert &
517 (D. 537; 1977), Corp. v. Flex- trie Beech 445 F. Supp. Corp. Mass. Aircraft (D. 1967), F. Corp. ible 270 548. Tubing Supp. Conn.
Roto-Lith, offer of an supra, purported acceptance involved a warranties, held that where implied. and The court express all disclaimed materially obligations the “sole- altering an states a condition acceptance is, effect, ex- ly disadvantage to of the offeror” an the on and therefоre a pressly conditional assent to the additional terms Thus, without accepted objec- when the offeror the goods counteroffer. tion, to document. responsive it became bound the terms offeree’s Indeed, not been well-received.
The Roto-Lith reasoning has rejects the Roto-Lith authority by uncovered our research weight of avert, to designed 2-207 was permits because it a result approach7 § i.e., an offeree under available to technique it revives “last-shot” King, supra, 3.04[1], rule. & mirror-image Deusenberg the common-law §§ Thus, subvert Roto-Lith rationale would acceptance of 3.06[3]. very 2-207 an offeror to the terms contained by binding purpose delivery of the when thе offeror takes in his offeree’s “counter-offer” bargain. purpose his Nor would goods performs part offeree’s document allowing responsive 2-207 be well-served an terms, and that the terms will be provide or different state additional this permit the offeror’s inaction. To accepted deemed 2-207, objective “. Section . . seems inconsistent with the unilaterally . to re-instate the would allow the offeree . . almost rationale, 2-207 hypothesis common-law for the of Section printed do not forms assumes that exchanged businessmen read Furthermore, offeror-buyer of the term. would not learn original on the objection the burden of affirmative placing clause offeror is itself a of the offer which the should offeror modification assent, assent, its shipping accept- first have to and absent (7th (America) 1977), Itoh & Co. Inc. v. Jordan International Co. C. 7. 552 F.2d Cir. 1228;Dorton Pennsylvania Power v. Collins & Aikman Corp.,supra; EbascoServicesInc. v. Co., (E.D. Fabrics, 1975), 421; Light Stafford-Higgins & Rite Inc. v. Co. F.Supp. Pa. 402 (S.D.N.Y. 1973), (1977), 90, 141 Corp. 1; Inc. v. Mobil Oil Steiner F.Supp. 20 3d 366 Cal. Hewitt-Robins, Corp. 157, Aggregates See also Construction Rptr. 751. Cal. 569 P.2d (7th 1968), (1969); Pipe 505, Idaho Inc. Steel Southern & F.2d 395 cert. den. U.S. 921 Cir. Pipe Supply, & Co. v. Cal-Cut 98 Idaho 567 P.2d the consumma- be deemed constitute should goods anee of the *9 & 2-207](3).”Deusenberg King, under tion of the contract [Section supra, § 3.06[4].
Therefore, of which jurisdictions list growing we add Indiana of which ef- a construction the statute reject Roto-Lith and we choose policies. fеctuates its announced us, and exchanged the between Chambers writings
In the case before was Uniroyal’s acceptance expressly a contract. Uniroyal did not create to the new terms and the on assent conditioned Chambers’ of assent to those record reveals no manifestation Chambers’ However, they apparently what piarties performed terms. both ship as evidenced obligations, to be their contractual believed Therefore, “sufficient of their conduct is goods. and ping 2-207(3). 2-204, 2-206. a contract.” to establish §§ Cf. writings agree, terms of the contract are those on which the The writings The between by applicable provisions. Code supplemented Uniroyаl only of and agree price, quantity as to terms Chambers writings All in the are shipment. time for other terms contained terms. inoperative supply therefore and the must additional Code identify only sup- here one relevant which provision We Code 2-314, warranty an agreement: imposes implied plements merchantability. of
ALLEGED PROCEDURAL IRREGULARITIES The record of the conference reveals that counsel and the pre-trial of both claims deciding trial court were much concerned with the method simultaneously.8 their Thrush and desired a bench trial of Chambers case, Uniroyal jury indemnity while demanded a trial of the claim. Other and, of trial were discussed at the concerning difficulties method counsel, suggestion of all were resolved favor problems of two with to be of a severance claims trial conducted on successive attempt purpose underlying 8. This concern stemmed from an to effectuate the TR. permit questions litigation 14: “to common fact to be determined in one in order delay judgment against party judgment to avoid between a in one action and a for action,-and separate against City him in a to militate inconsistent results.” Elkhart 514, 356 Miller, Wright v. Middleton 265 Ind. N.E.2d 211. See also & Federal Practice and Procedure: Civil § entered, 1,1973 stating was days.9 entry April An order book dated by agreement parties.10 was taken that the action commence, days Three before the first trial was scheduled court, and submitted their case trial appeared and Chambers of these for Thrush. was not notified resulting judgment Thereafter, summary Uniroyal sought both proceedings. Chambers indemnity claim. independent with to the severed and judgment respect motion, the trial court considered granting Before Chambers’ v. apparently adduced at the trial of Thrush evidence was bound as to of fact common questions concluded summary judg- litigations. appeal grant the two attacks well as the effect of the entered as a result preclusive judgment ment as of the trial of Thrush Chambers. determined in the trial of
Uniroyal contends that the issues fact *10 given not it and that it must be binding upon are litigate alleged questions. an common factual opportunity may briefly be as follows: pоsition summarized (1) and, therefore, binding a to the it to “party” was main claim opportu-
determinations of fact therein without notice and an nity law; process to be heard denies it due (2) suit, already even if resolved party not a it is not bound
common pursuant employ- fact to “voucher” because questions ment use of the impleader precludes of the device concomitant voucher and procedure; party significance 9. Neither has attached to the distinction between “severance” 1972) (N.D. 645, 646, United, “separation,” indeed, Miss. 56 F.R.D. and see Lusk v. Pennzoil practice the courts the distinction “is often obscured in since at times talk and Miller, supra, ‘separate interchangeably.” Wright of a trial’ and ‘severance’ & entirely usually judgment, Separate will result in one but severed claims become trials thereon, tried, judgment independently. independent Id. We actions to be and entered distinction, consequences so to further elaborate on the of the for to do would see no need though “separa- us. We note that the trial court ordered a obfuscate the issue before claims, clearly transcript pre-trial par- conference reveals that the
tion” of the judgments, contemplated independent court two distinct lawsuits with ties and the trial i.e., a severance. that the claims were not severed 10. The record thus belies contention immediately before the trial of Thrush v. until Chambers. (3) litigation, even if bound to determinations of fact in the first
there sum- genuine preclude exist issues of material fact mary judgment.
To our determination of these issues in it is place perspective, necessary warranty” that we first discuss the of “voucher to process and the of the vouchee’s the voucher’s consequences failure to assume defense.
The right per- common-law a defendant to “vouch-in” a son liable over himto was set forth in the case of Lit leading 179, 759, tleton v. Richardson 34 N.H. 66 Am.Dec. 760: another, person by is over to either responsible opera- “[WJhen by duly tion of law or contract. . . express and he is notified of suit, pendency to take him the defense requested upon it,of he is longer regarded no stranger, because he has the action, right to appear defend the and has the same means and advantages of if contravening claim as he was the real case, nominal party upon every the record. In such if due notice is to such given person, the if judgment, obtained without fraud him, or collusion... will be conclusive against whether he has ap- or not . . . .” peared
“Voucher warranty” has roots in deep common-law emanating from England.11Its application America has flourished. In our General Assembly codify saw fit to practice as it relates to the law of sales concerning “middlemen” enacting 2-607:
“(5) buyer Where the is wаrranty sued for breach of a or other (a) obligation for which his seller is answerable over he give his seller notice of the If litigation. the notice states that the seller may come in and defend and that if the seller does not do so he will any be bound in against buyer by action him his deter- *11 mination of fact common to the two litigations, then unless the seller after seasonable of the notice does receipt come in and defend he is so bound.”
Vouching-in is a “simple way expedient defendants who have a over right against necessity another to avoid the relitigating (1976). Comment,
11. See 29 Ark.L.Rev. 486 suit.” Moore’s liability issues of in the first IB plaintiff Federal Practice It has the of not unique advantage ¶ 0.405[9]. Id. requiring personal process. service of However, necessity voucher does not alleviate the of a second lawsuit. merely “any It binds the vouchee to determination of fact common to Thus,
the two
it
litigations.”
was Chambers’ burden to estab-
(1)
lish:
that
purchased
goods
Uniroyal;
Chambers
from
(2)that
sold the
to Thrush
goods
subject
Chambers
to the same
(3)
warranties
from
in
Uniroyal
received
that
original purchase;
(4)
Thrush;
warranty
Chambers breached its
to
that the breach resulted
(5)
Thrush;
to
damage
that Thrush was
judgment
able to obtain a
(6)
Chambers;
against
that
Uniroyal
Chambers
vouched in
properly
(7)
defense;
defense;
assume their
Uniroyal
that
declined to assume the
(8)
(9)
that
has paid
judgment
Chambers
and costs and
that at no
time was there
change
in characteristics
or
goods.
condition of the
511,
Liberty Mutual Ins. Co. v. J.R. Clark
239 Minn.
59 N.W.2d
(1960).
Annot.,
899. See
A. UNIROYAL WAS NOT DENIED D UE PROCESS OF LA W The severance of the claims resulted in two distinct Uniroyal lawsuits. does not cite authority for the proposition that it remained a “party,” nor doеs it otherwise indicate the argument. basis its There is nothing of record which indicates a false belief Uniroyal trial court that remained a “party” the action between Thrush and nor has (Uniroyal) claimed that was misled into so thinking. claims, When the trial court severed the longer was no *12 522 op- to notice and an was not entitled claim and thus to the main
party in that claim. to the issues embraced respect with to be heard portunity Therefore, of law. denied due Uniroyal process was not
B. THE USE OF VOUCHER PRECLUDE IMPLEADER DOES NOT precludes device impleader that use of the Chambers’ Uniroyal asserts we without benefit of citation Again, into the are to vouch it case. effort rele- Uniroyal does state that no though authority pаrty, to from either However, and commentators found. both courts vant cases could be the older to not supplement, supplant, was intended agree impleader that that Uniroyal’s upon supposition rests a argument of voucher.12 device of imposition of interest” created simultaneous there is a “conflict the two devices.13 before necessary appeal to determination only issues
We decide Thus, discussion far-ranging in broad and a engage we decline us. use of the arise from concurrent might which problems the potential of the facts upon Rather we focus devices. impleader-vouching-in Uniroyal’s argument. legitimacy to measure the before us casе right parties 12. “Rule 14 will not affect the of a defendant to vouch in third liable litigation Study upon ...” Indiana See to him the claim Civil Commission Comments. (S.D.N.Y. 1967), 1; Empress Supp. F. 277 Dixon v. Fiat- West Indian Co. v. S.S. Canada (1973), 689, 86; Motors, Wash.App. Moyses Spartan Asphalt 8 509 P.2d v. Roosevelt 797; (1970), 314, 174 Paving Fidelity Casualty 383 Mich. N.W.2d Clarke v. Co. Co. 327, 285 503; (1961), 527, 173 N.Y. 55 Misc.2d N.Y.S.2d State v. Wood (1961), 53 Del. A.2d 327; 121, 167 Corp. Corp. 34 633. See U.S. Wire & Cable v. Ascher N.J. A.2d also ¶ 0.405[9]; 14.02[1];2 1BMoore’sFederal Practice 3 Moore’sFederal Practice Anderson’s ¶ (1971);Cohen, “Impleader: 2-607:54 Enforcement of Defen Commercial Code § Uniform Parties,” Rights against dants’ Third 33 Col.L.Rev. Uniroyal’s Uniroyal original “How ‘vouched-in’ to the brief asks could as a defendant liability Uniroyal argue opinion action has no when takes the Chamber[s] [sic] liability Uniroyal’s simply, Quite there have been which was not fault?” fully assumption opportunity litigate defense would havé afforded an Chambers’ Chambers, warranty relationship between Thrush and whether a defect existed and any damages. “Change goods nature and extent of in condition” of is an issue Chambers, that could not be raised in the trial of Thrush for it would not be relevant. However, necessarily key it is issue in suit for indemnification between Chambers Uniroyal. object being impleaded We also note that did not and vouched-in nor did procedural attempt to vacate the use of one or the other as a device. The time first argument appears this is Motion to Correct Errors. ceased to be Here, the claims and court severed the trial Uniroyal in the same placed The severance claim. principal party a “vouchee” filed. It was had been complaint if third-party as no position Any issue or defense defense. which had been tendered Chambers’ had litigated have been Thrush could against to raise Uniroyal desired *13 however, as a factual Uniroyal, defense. Uniroyal assumed Chambers’ it was denied complain cannot now to do so and matter declined participate. to opportunity an of Thrush the time for trial not notified of Uniroyal was
That refused Uniroyal has different result. does not dictate a Chambers contains no indica- The record tender of its defense. Chambers’ notified, chаnged it would have Uniroyal been tion that had defense assumption that the Chambers’ its Given position. declined, have how the time for trial could to perceive been we fail had as matter of law that lack Uniroyal. Thus we determine mattered error. cannot be considered Uniroyal and prejudice of notice did not C. FACT OF MATERIAL A GENUINE ISSUE
THERE EXISTS heretofore, necessarily follows stated From what we have is bound to those deter- in and therefore Uniroyal was vouched properly We must litigations.” to the two of fact which are “common minations in order to determine the common issues of fact therefore isolate effect, the trial of following if entered any, judgment preclusive Thrush v. Chambers. issues “common will be more than two
Only in unusual cases there i.e., were defective at goods whether litigations,” to the two the middleman was liable by the middleman and whether time of re-sale Barton, “Vouching Degnan harmed the defect. person Code,” 51 Warranty: Law and Cal.L.Rev. Quality Case Commercial (4th 1973). 2240(f) Thus, 471, (1963); Ed. Williston on Sales pur- 484 2-607(5)(a) existence Uniroyal denying from precluded is suant to § Further, to Thrush. from at the time of the sale of a defect within the defects were raise the defense that not trial of Thrush litigated have been That issue should tolerances. statute, now cannot Uniroyal, by virtue of the voucher v. Chambers. assert this defense.
However, that a defect existed and that Chambers was found liable not, more, to Thrush does without еntitle summary Chambers to judg Indeed, us, Uniroyal. ment against from the record before we fact, discern at least one issue of not addressed the trial findings, summary court’s which makes judgment inapprop riate. There remains for determination the issue whether the were goods delivered the same condition as when sold them (N.D. 1960), 64, to Chambers. Grummons v. Zollinger Ind. 189 F. Supp. (N.D. 1964), vacated on other grounds, 240 F. Supp. Ind. aff’d 341 (7th 1965). Accord, Communications, F.2d 464 Smith Radio Inc. v. Cir. (1974), 322, 527 711; Challenger Equipment, Ltd. 270 Or. P.2d Morse Chain 475, 157 Co. v. Formsprag Co. 380 Mich. N.W.2d 244. See also Note, 2240(f) (4th (1966); 18 Stan.L.Rev. 666 Williston on Sales Ed. 1973). Therefore, it was error for the trial court to enter summary judgment.
The judgment is reversed and the cause is remanded for further pro- not ceedings inconsistent with opinion. this White, J., concurs.14
Buchanan, C.J., concurs separate with opinion.
CONCURRING OPINION 1 Buсhanan, C.J. I concur in by the result reached majority. Unlike them I would be more comfortable further exploring the conduct of the parties to if determine a freely contract has been entered into before 2-207(3). word, resorting In UCC it is preferable not to narrow § the area of freedom of contract. Judge participated 14. White in the decision and voted opi- his concurrence in this 30,1978. prior resignation
nion to his from the bench effective June distinguishable 1. Roto-Lith is acknowledgment on its facts. There ap- the order peared to be acceptance buyer’s an unconditional of the accep- offer when in fact the warranties, incorporated tance hаd express implied. disclaimer of all The court response acceptance expressly characterized the as an pre- conditional on assent. In the case, terms, acceptance, by sent very its was conditioned on Chambers’ assent to the additional terms. con- expressly language contained acknowledgment order terms con- assent to the additional on Chambers’ ditioning acceptance majority finding, on this in the of Sale”. Based tained “Conditions and, contract con- did not create a writings parties holds that the 2-207(3). by is governed their transaction UCC sequently, § I order not there. see stop To me the should inquiry Chambers, extended to see C. Itoh as a countеroffer acknowledgment (7th 1228; 1977), 552 F.2d Con International Co. Cir. & Co. Jordan (7th 1968), Hewitt-Robbins, Corp. v. Cir. Aggregates struction denied, 921, thereby necessitating an examina F.2d cert. 395 U.S. express in order to determine if an contract tion of assent Chambers’ Unfortunately was that assent being parties. came into between (silence) recognized inaction which has not been based on Chambers’ 1 W. as a mode of this kind of a context.2 See acceptance HAWKLAND, A Transactional Guide Uniform Commercial Code § 1.090303 19-20 at
So no contract was created
and UCC
writings
parties
2-207(3)
My
there works less of
applied.
arriving
must be
method
§
in 3 R.
approach
a restraint on freedom contract —an
sanctioned
(MB)
Duesenberg
King,
& L.
Servicе
Uniform
Commercial
Code
(1977):
3.06[3]
must
that the
recognized
be
offeree should not be compelled
[I]t
them,
the terms of the offer if he does not
accept
want
and he
also to be free to
with a
ought
respond
counteroffer.
NOTE—
Also,
2-207,
contrary
objective
2.
is to
inaction is
technique
eradicate the last-shot
available to an offeree under the common law mirror-
(6th
1972),
image
Corp.
1161.
rule. See Dorton v. Collins & Aikman
Cir.
453 F.2d
See also
(MB)
3 Uniform
Code Service
Commercial
3.06[4]
*15
If, however,
merely objected properly
pro
to one of the additional
terms
Chambers had
necessary
posed by
provided
required
this
have
manifestation
assent
remaining
Aggregates Corp.
additional
terms.
to bind Chambers to the
See Construction
(7th
1968),
denied,
Hewitt-Robins,
Cir.
F.2d
cert.