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Mccarty v. Verson Allsteel Press Co.

OPINION FILED SEPTEMBER 25, 1980.

WILLIAM MCCARTY, PLAINTIFF,

v.

VERSON ALLSTEEL PRESS CO., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE. — (NASH BROS. CO., THIRD-PARTY DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. DURHAM, Judge, presiding. MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 6, 1980.

The third-party plaintiff was sued by an employee of the third-party defendant who was injured while using a machine manufactured by the third-party plaintiff. The third-party plaintiff settled and sued the third-party defendant, claiming it was entitled to indemnification under a clause contained in its form sent along with its price quotation. The trial court, after a bench trial, found that the clause was part of the contract and entered judgment for third-party plaintiff in the amount of $322,745.44. We disagree and reverse.

In early 1971, Nash Bros. Co. (hereinafter called buyer), and Verson Allsteel Press Company (hereinafter called seller), entered into oral negotiations regarding the sale of a punch press from the seller, Verson, as a manufacturer, to Nash, the buyer. These negotiations centered almost completely around the technical specifications of the subject punch press. At no time during this period of oral negotiation were any discussions had regarding the indemnification of seller by buyer for injuries caused by defects in seller's presses.

On May 19, 1971, seller sent buyer a document entitled Proposal No. 5575-1-RB. It stated: "In accordance with your request, we are pleased to offer the following press brake equipment for your consideration * * *." A detailed list of "General Specifications" and "Items Included" followed. The proposal concluded:

"Point of operation guards are not included with this equipment. It is the employer's responsibility to provide guards, devices, tools, or other means to effectively protect all personnel from serious injury which may otherwise occur as a result of any particular machine use or activity.

Thank you for this opportunity to offer our equipment. Should you require any additional information, please let us know."

This offer was subject to 30 days' acceptance.

At the foot of the first page of the proposal was the legend: "All quotations, orders and contracts are subject to acceptance of home office."

Enclosed with the May 19th proposal was a copy of seller's form "Conditions of Sale-Machinery." In pertinent part, these provided:

"VERSON ALLSTEEL PRESS COMPANY

Chicago, Illinois

CONDITIONS OF SALE-MACHINERY

7. WARRANTY — WARRANTY LIMITATIONS — INDEMNITY,

(a) Subject to the other provisions of Verson's proposal and these conditions, Verson warrants all goods manufactured by Verson to be free from defects in material and workmanship for a period of one (1) year from the date of shipment. All goods sold hereunder not manufactured by Verson are warranted by Verson only to the extent provided by and enforceable against the manufacturer of such goods. Unless otherwise specified, wiring will conform to Verson's interpretation of the National Electrical Code. VERSON MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO RUBBER GOODS OR FIXTURES.

(b) Verson's obligation hereunder shall be limited to the replacement of such parts which examination shall disclose to the satisfaction of Verson to have been defective under ordinary and normal use, provided written notice of such defects shall be given by customer within thirty (30) days after they first appear. In no event shall Verson have any liability whatsoever for payment of any consequential, incidental, indirect or special damages of any kind, including, but not limited to, any loss from profits. No allowance will be made for any expenses incurred by customer in repairing defective parts or supplying any missing parts, except on the written consent of Verson. In any case where Verson is effecting the replacement or repair of any defective parts, customer shall have the responsibility and bear all the costs of procuring and providing all necessary dismantling, reassembling and handling facilities in connection therewith.

(c) Customer assumes and shall bear all responsibility for providing adequate and sufficient safeguards, work handling tools and safety devices to protect fully the operator and any other users of the goods at all times, in accordance with the prevailing federal, state, and local codes and industry-accepted standards. Verson shall bear no liability whatsoever for the failure of customer to order, install, or use such safeguards, work handling tools or safety devices. Customer shall establish and use, and require all persons operating the equipment to use, all proper and safe operating procedures, including but not limited to procedures set forth in any manuals or instruction sheets relating to the equipment. Customer shall not remove or modify any devices, warning sign, or manual furnished with, or installed upon or attached to the goods.

NOTWITHSTANDING ANY PROVISION OF THESE TERMS AND CONDITIONS, THE WARRANTY CONTAINED IN THIS PARAGRAPH, AS LIMITED HEREIN, IS THE ONLY WARRANTY EXTENDED BY VERSON IN CONNECTION WITH ANY SALE BY IT AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.

8. INDEMNITY,

Customer hereby (1) waives, releases and discharges any and all claims of any and every kind (including but not limited to injury to or death of any person or damage to property), which it may have at any time against Verson, its agents or employees, by reason of or arising out of any claimed improper design, specifications or manufacture of the goods sold hereunder, or of devices; and (2) covenants to indemnify and hold-harmless Verson, its agents and employees of, from and against any and all loss, damage, expense, claims, suits or liability which Verson or any of its employees may sustain or incur at any time for or by reason of any injury to or death of any person or persons or damage to any property, arising out of any claimed improper design or manufacture of the goods sold hereunder, or of any claimed inadequate or insufficient safeguards or safety devices.

14. ACCEPTANCE — WHOLE AGREEMENT,

ALL ORDERS ARE VALID AND BINDING UPON VERSON ONLY UPON ACKNOWLEDGMENT BY A DULY AUTHORIZED OFFICER OR DEPARTMENT MANAGER OF VERSON, BY ANY ACKNOWLEDGMENT OR ACCEPTANCE BY CUSTOMER IN ANY MANNER OF VERSON'S PROPOSAL, OR BY THE SUBMISSION OR ISSUANCE OF CUSTOMER'S OWN PURCHASE ORDER BASED ON SUCH PROPOSAL, CUSTOMER UNCONDITIONALLY ACCEPTS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN, SUCH TERMS AND CONDITIONS SHALL CONSTITUTE THE COMPLETE AGREEMENT BETWEEN CUSTOMER AND VERSON AND SHALL NOT BE SUPERSEDED BY ANY CONDITIONS OR PROVISIONS IN CUSTOMER'S ORDER WHICH MAY CONFLICT WITH, BE CONTRARY TO OR OTHERWISE VARY FROM THOSE HEREIN CONTAINED. ALL PREVIOUS COMMUNICATION BETWEEN THE PARTIES HERETO, WHETHER VERBAL OR WRITTEN, WITH REFERENCE TO THE SUBJECT MATTER HEREOF, IS HEREBY ABROGATED, IT BEING UNDERSTOOD THAT THERE ARE NO OTHER AGREEMENTS, UNDERSTANDINGS, GUARANTEES OR WARRANTIES WHATEVER, EXPRESS OR IMPLIED, EXCEPT AS CONTAINED IN VERSON'S PROPOSAL, AND THESE CONDITIONS.

Verson Allsteel Press Co."

On or about May 28, 1971, seller sent buyer its Proposal No. 5575-1-RB Revised. This document contained language almost identical to the May 19, 1971, proposal in its opening and conclusion. It also provided that the prices were subject to 30 days' acceptance and that all quotations, orders and contracts were subject to the acceptance of the home office. The enclosures included another copy of seller's "Conditions of Sale-Machinery." Various changes were made, however, in the "General Specifications" and "Included Items."

On June 8, 1971, seller sent buyer a letter, on its own stationery, reducing the price of the press which was the subject of its proposals. On the face of this letter was printed:

"All quotations, orders and contracts are subject to acceptance of home office and are contingent upon strikes, fires or ...


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