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Gord Industrial Plastics v. Aubrey Mfg.

OPINION FILED JANUARY 29, 1982.

GORD INDUSTRIAL PLASTICS, INC., PLAINTIFF-APPELLEE,

v.

AUBREY MANUFACTURING, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of De Kalb County; the Hon. REX F. MEILINGER, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 1, 1982.

Plaintiff brought this action for breach of contract against defendant in the De Kalb County Circuit Court. Defendant had stopped payment on a check it had issued as payment for the recovery of certain molds manufactured by plaintiff for defendant. The molds had been retained by plaintiff to make plastic parts for defendant for use in its business. Defendant denied any obligation to pay for the recovery of the molds and counterclaimed for damages it incurred in correcting defects in products made by plaintiff from the molds. The trial court ruled that the parties had arrived at an agreement in the nature of an accord and satisfaction, by which agreement defendant agreed to pay to recover the molds and all claims between the parties were settled. Defendant appeals, contending that there was no accord and satisfaction, and that the parties' contract did not require the payment of a removal fee. It further argues that it is entitled to damages caused by plaintiff's deliveries of defective products made from the mold.

On April 19, 1976, defendant sent plaintiff a "purchase order" for a mold to be used in the manufacture of plastic parts required by defendant in his business, for a price of $5,180. On the front of the order form, at the bottom, was stated, "PLEASE SEND US THE ABOVE SPECIFIED GOODS SUBJECT TO CONDITIONS ON FACE AND BACK OF THIS ORDER." On the back of the form was printed a number of terms. Pertinent to this dispute are the following terms:

"BY ACCEPTANCE OF THIS ORDER THE SELLER AGREES TO:

1. Acknowledgement & Acceptance:

The vendor must acknowledge receipt of this order promptly and state whether or not it is accepted upon the terms and prices herein specified, make no substitution without authority from us.

16. Conflicts:

If any conflict appears between these terms and conditions and the terms and the conditions of your proposal, the terms and conditions of this order shall prevail."

On May 10, 1976, defendant sent a second "purchase order" for another mold at $5,330. The reverse side of this order form listed the same terms as the earlier one.

On May 25, 1976, plaintiff sent a form listing the two molds and their prices, $5,180 and $5,330, and quantities and prices of parts made from the molds. Printed at the bottom of this form was the following: "THE ADDITIONAL TERMS AND CONDITIONS ON THE REVERSE SIDE OF THIS SHEET ARE PART OF THIS PROPOSAL AND SHALL APPLY TO ALL SUBSEQUENT ORDERS ON THE PROPOSAL. PLEASE SIGN ONE COPY ON REVERSE SIDE AND RETURN WITH YOUR ORDER." The pertinent terms on the reverse side stated as follows:

"15. MOLD REMOVAL. In consideration of the engineering services necessary in the designing of molds, and not charged for at the fair market value, all molds shall remain in our possession for one year from the approval of samples or until the sales of the parts produced therefrom equals 10 times the price of molds and tools as built. Thereafter the customer may take delivery of molds and tools `as is' upon payment of a charge of 30% of their original billing price.

25. * * * This proposal, when accepted by the customer, shall become a contract only when received at the home office of the company and formally acknowledged."

Below this last term of the proposal was provided space for signature signifying acceptance. Defendant's purchasing agent testified ...


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