Brown Machine, Inc. v. Hercules, Inc.

770 S.W.2d 416 (1989)

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Nature of the Case

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Facts

P sold a trim press to D to be used in manufacturing Cool Whip bowls. The transaction started by P sending a quote to D. The proposal set out sixteen numbered paragraphs describing the machine to be sold. Attached to the proposal was a printed form of fifteen paragraphs in boilerplate style captioned 'TERMS AND CONDITIONS OF SALE.' The eighth paragraph contained an indemnification clause where D agreed to indemnify P because of bodily injury or property damage caused by or resulting from the use or misuse of the equipment including reasonable attorney’s fees and legal expenses. D had prepared its purchase order No. 03361 in response to P's proposal where D objected to the payment term requiring a twenty percent deposit be paid with the order. P received D's written purchase order No. 03361 dated January 6, 1976. The order was for a 'Brown T-100 Trimpress in accordance with Brown Machine quote #51054. All specifications cited within quote except item #6.1.1 which should read: 'Reverse trim' instead of 'Standard regular forward trim.'' In a blue box on the bottom left of the purchase order form in bold print appeared 'THIS ORDER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS STATED HEREIN INCLUDING THOSE PRINTED ON THE REVERSE SIDE. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY THE SELLER ARE REJECTED UNLESS EXPRESSLY AGREED TO IN WRITING.' The reverse side of Hercules' purchase order, captioned 'TERMS AND CONDITIONS' contained sixteen boilerplate paragraphs, the last of which provided: 16. OTHER TERMS: No oral agreement or other understanding shall in any way modify this order, or the terms or the conditions hereof. Seller's action in (a) accepting this order, (b) delivering material; or (c) performing services called for hereunder shall constitute an acceptance of the above terms and conditions. D's order contained no indemnity provision. P received two copies of the purchase order. One had been stamped 'Vendor's Copy' at the bottom; the other was marked 'ACKNOWLEDGMENT', with a space labeled 'accepted by' for signature by P. P did not return this prepared acknowledgment to D. On January 21, 1976, P sent D an invoice requesting payment of $4,882.00, the twenty percent deposit for the trim press. P sent D an 'ORDER ACKNOWLEDGEMENT' dated February 5, 1976. It set out the same sixteen specifications contained in P's original proposal. Paragraph 6.1.1 of the specifications again provided for 'Standard-regular forward trim.' Page four of the acknowledgment contained the same 'TERMS AND CONDITIONS OF SALE' which had accompanied P's earlier proposal of November 7, 1975, including paragraph eight on liability and indemnity. Two minor changes had been penned in on page four, neither of which has any bearing on the issues presented for appeal. D never paid the twenty percent deposit. P sent Dan invoice dated April 14, 1976, requesting final payment of the total purchase price. P eventually shipped the trim press to D and D paid the agreed-upon purchase price. James Miller, an employee of D, and his wife sued P because of injuries he sustained while operating the trim press at D's plant. P demanded that D defend the Miller lawsuit, but D refused. P settled the Millers' lawsuit and initiated this action against D for indemnification of the settlement amount paid. D appeals from the judgment of the trial court awarding P $157,911.55 plus interest after a jury verdict in favor of P in its action against D for indemnification.