Harlow & Jones, Inc. v. Advance Steel Co.

424 F.Supp. 770 (E.D. Mich 1976)

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Nature of the Case

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Facts

D had several telephone conversations with a William VanAs, an independent steel broker who is authorized to solicit orders on a commission basis from customers in the Great Lakes area on behalf of P. VanAs informed D of the availability of some 5000 metric tons of cold rolled steel which P could import from a West German mill for shipment during September - October 1974. D was interested in purchasing 1000 tons of this shipment. P mailed to D a sales form confirming a sale of 1000 metric tons of cold-rolled steel, with shipment from a European port during September - October 1974. P then placed an order with Centro Stahlhandel GMBH for the 1000 tons and included a copy of its sales form to D. D received the confirmation form but never signed or returned the enclosed copy as requested. D prepared a worksheet for the transaction in question, and on the basis of this worksheet prepared and mailed D's purchase order, B-04276, containing the same quantities, specifications (with minor revisions), and shipping dates as P's confirmation form. D's purchase order was received by P on July 25, 1974, but was never signed or returned. The steel was shipped from Europe on three separate vessels. The first two shipments of 214 tons and 195 tons were shipped, accepted and paid for by D. The balance of the steel was shipped from Antwerp on November 14, 1974, and arrived in Detroit on November 27, 1974. In a letter to P dated October 29, 1974, D rejected this third shipment because of 'late delivery.' In a letter dated November 7, 1974, P rejected D's cancellation and denied that a delay had yet developed which would justify D's action. The steel was warehoused in Detroit for a time and eventually sold at a loss by P to other buyers, including D. P sued D for breach. P contends its sales confirmation form was an offer which D accepted by mailing back D's purchase order form. P construes D's purchase order as a 'definite and seasonable expression of acceptance,' within the meaning of 2-207, which provides that such a response to an offer which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. P's form does specify a shipment date of 'September-October, 1974.' P produced evidence that the accepted steel importing trade usage of shipment in September - October means delivery in October - November. The final shipment occurred before the end of November, and thus P contends that its shipping obligations were met and that D improperly and prematurely rejected this shipment on October 29. D testified that he telephoned VanAs sometime between July 9 and July 22 and informed him that he could not accept the boilerplate disclaimers regarding delivery on the back of P's sales form and that VanAs had told him to just circle the objectionable terms and return the form. D also testified that he told VanAs he needed delivery no later than October 31 and this was accepted. D claims the market for steel was high and unstable during the summer and fall of 1974, and in any purchase of imported European steel, time was therefore of the essence. D contends it rejected the shipping terms contained in P's sales form and that its purchase order was a counter-offer which P accepted by making two partial shipments in October. D argues that its rejection of this last shipment was fully justified under the contract.