Gardner Zemke Co. v. Dunham Bush, Inc.

Gardner Zemke (plaintiff), a general contractor on a DOE project, sent Dunham Bush (defendant) a purchase order for air-conditioning units; Dunham replied with an acknowledgement form containing substantial warranty disclaimers and a clause treating Gardner's silence as acquiescence. The parties proceeded without resolving these discrepancies. After installation, DOE found two units defective, and when Dunham conditioned repair service on DOE agreeing in advance to pay if the units turned out fine, DOE hired an independent repair contractor instead and withheld $20,000 from Gardner's contract to cover the cost. Gardner sued Dunham to recover that amount; the trial court ruled for Dunham, treating its acknowledgement form as a counteroffer that Gardner accepted by proceeding with the deal, incorporating Dunham's warranty disclaimers.