Middletown Concrete Products, Inc. v. Black Clawson Co.

802 F. Supp. 1135 (D. Del. 1992)

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Nature of the Case

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Facts

P entered into a series of contracts with a wholly owned division of D. D agreed to sell to P a machinery system to manufacture concrete pipe. P then entered into an additional contract with D for the purchase of equipment for the production of elliptical concrete pipe. At the initial meetings in 1988, D gave P a promotional brochure which contained a list of rates at which the machine could produce various sizes of pipe. P considered purchasing machinery from the Hawkeye as well as from D. P was concerned about performance, and P requested that D guarantee production rates. D told P it could not guarantee the production levels in the promotional brochure because actual production levels could depend on a number of factors. D also stated that changeovers could be made in about an hour. P actually experienced changeover times in excess of four to eight hours. At a later meeting, D presented P with D's definition of 'Acceptable Performance' in the form of a letter (the 'Acceptable Performance Letter'). The production rate listed was less than that contained in D's literature. When the letter was prepared, no machine was operating, and the only other machine had been sold to American Concrete Products in Milwaukee. D did not share the basis of the production rates with P. P visited the only working machine but was not able to get an accurate figure for the production rates because the supply of concrete mix to the machine was not rapid enough to allow full capacity. The parties eventually signed 3 contracts. Each contract contained an express limitation period of 90 days. Each contracted detailed that this warranty was exclusive and in lieu of all other warranties, written, oral or implied, including merchantability and fitness for a particular purpose. Each of the contracts contained a merger clause wherein the contracts were the entire agreement between the parties. Once installed P had nothing but complaints about the machine as well as complaints about D not fixing the issues. A mechanical specialist from D investigated and found that the machinery had been prematurely damaged, possibly because it had been improperly fabricated; it was unlikely this damage was due to abuse; there were also a number of other defects with the machine which needed to be repaired or replaced, including the pallet centering mechanisms, pallet centering bars, a dysfunctional air compressor in the Rekers robot, and the top table siper bracket for the 24' set up. P contends that most of the defects were not timely repaired, and some were never corrected. D blamed some of the problems on P with improper training and maintenance. P and D embarked on a joint effort to attempt to get the System to perform acceptably, but it was unsuccessful. P sued D, and both parties moved for summary judgment.