Diamond Fruit Growers, Inc. v. Krack Corp.
United States Court of Appeals, Ninth Circuit
794 F.2d 1440 (1986)
Over a ten-year relationship, Metal-Matic's (third-party defendant's) acknowledgment forms responding to Krack's (defendant's) release purchase orders expressly conditioned acceptance on Krack's assent to disclaimer-of-liability terms Krack had at least once objected to but continued doing business despite; after defective Metal-Matic tubing caused an ammonia leak damaging Diamond's (plaintiff's) fruit warehouse, a jury held Krack liable to Diamond and awarded Krack 30 percent contribution from Metal-Matic, rejecting Metal-Matic's argument that its disclaimer terms limited its liability.
Whether, in a commercial transaction in which the parties exchange printed purchase order and acknowledgment forms, and acceptance is expressly conditioned on the offeror's assent to additional or different terms, the additional or different terms will become part of the contract if the offeror does not specifically and unequivocally express assent to those terms.