Appeal from the United States District Court for the District of Oregon. D.C. No. CV-88-6403-HO. Michael R. Hogan, Magistrate Judge, Presiding.
Before: Goodwin, Tang and Thompson, Circuit Judges.
Swanson Brothers Lumber Company ("Swanson") brought this diversity action for breach of contract, breach of warranties and negligent misrepresentation against Koppers Company ("Koppers") and Van Waters and Rogers, Inc., ("VWR"). Swanson seeks to recover damages arising out of the discoloration of its lumber allegedly caused by using NP-1, a chemical wood preservative and sap stain control product manufactured by Koppers and distributed by VWR. After a bench trial, Magistrate Judge Hogan, who tried the case with the consent of all parties, dismissed the action. We affirm.
VWR's sales representative, Vic Berkey, contacted Chuck Eslick, Swanson's plant manager, and offered to sell Swanson NP-1. Berkey orally represented to Eslick that NP-1 required no additives, was stable to pH and water hardness and suitable for treatment of green douglas fir lumber. Swanson purchased NP-1 through Eslick but, after using it, experienced significant discoloration due to iron stain on lumber treated with NP-1.
The packing slip, invoice and label accompanying drums of NP-1 set forth a disclaimer of warranty and limitation of remedy in bold capital letters:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES OF FITNESS OR OF MERCHANTABILITY OR OF ANY OTHER KIND WHATSOEVER EXCEPT THAT THE GOODS SOLD HEREUNDER SHALL BE OF THE QUANTITY ABOVE SPECIFIED. BUYER ASSUMES ALL THE RISK OF LIABILITY WHATSOEVER RESULTING FROM THE USE OF SUCH GOODS, WHETHER USED SINGULARLY OR IN COMBINATION WITH OTHER SUBSTANCES. SELLER'S LIABILITY FOR NONCONFORMING GOODS IS EXCLUSIVELY LIMITED, AT THE SELLER'S OPTION, TO REPLACEMENT OF THE DEFECTIVE GOODS OR THE PURCHASE PRICE OF SUCH GOODS AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
Exhibit 207. The packing slip and invoice further provide that the terms and conditions stated there are all of the terms of the sale and purchase unless there is a prior written agreement, and that modifications are prohibited unless a written agreement is signed by the party to be bound.
In pretrial proceedings the district court treated VWR's and Kopper's motion for summary judgment as a motion to strike Swanson's claim for negligent misrepresentation, and struck this claim. Following a bench trial on the remaining claims, the court entered judgment for VWR and Koppers. This appeal followed.
The district court concluded Swanson's breach of contract claim was barred by the conspicuous terms of the packing slip, that constituted the agreement between the parties. Swanson disputes the court's finding that the terms of the packing slip constituted the agreement between the parties, barring evidence of Berkey's pre-sale oral representations.
The court found that when Eslick picked up the first order of NP-1 he was required to accept a packing slip prior to the product's release. Eslick had previously purchased products from VWR subject to a similar packing slip and he agreed that the slip was "part of the deal." Eslick and Larry Konnie, an employee of Swanson, testified that Swanson has certain terms and conditions on its own invoices and that it is the custom in the industry to make sales subject to such terms without discussing them. We cannot say the district court's factual finding that the parties intended the terms of the packing slip to constitute the agreement between them was clearly erroneous. See Anderson v. Bessemer City, 470 U.S. 564 (1985); Ore. Rev. Stat. § 72.2020 (1991) (in order for a merger clause to be valid, parties must intend a writing to be their complete agreement).*fn1
Swanson contends the disclaimers of warranty are ineffective because the parties did not agree to them, they were not sent within a reasonable time after the contract was ...