297 F.2d 497 (1st Cir. 1962)
Roto-Lith, Ltd., a New York corporation engaged in manufacturing cellophane bags for packaging vegetables, purchased emulsion from F.P. Bartlett & Co., a Massachusetts corporation that makes emulsion for use as a cellophane adhesive, in May and October 1959.1 Subsequently bags produced with this emulsion failed to adhere, and this action was instituted in the district court for the District of Massachusetts.2
On October 23, 1959, Roto-Lith mailed a written order to Bartlett for a drum of “N-132-C” emulsion, stating the end use as wet pack spinach bags.3 Bartlett prepared an acknowledgment and an invoice on October 26 bearing a conspicuous legend that all goods sold without warranties, express or implied, and subject to the terms on reverse side, with terms excluding all warranties and limiting seller's liability to replacement.4 The goods were shipped on October 27, and the acknowledgment was received at least no later than the goods.5
Roto-Lith did not protest the terms in the acknowledgment, paid for the emulsion, and used it.6 At the conclusion of the evidence the district court directed a verdict for Bartlett.7
In May 1959 Roto-Lith ordered a quantity of “N-136-F” emulsion, which Bartlett knew was of necessity unfit for the disclosed wet bag purpose.8 However, Roto-Lith did not advance arguments distinguishing the May order from the October order during the trial.9
Bartlett asserted a counterclaim, but it requires no separate discussion.10 Roto-Lith appealed the directed verdict to the United States Court of Appeals for the First Circuit.11
Whether the terms of the acknowledgment and invoice, including the disclaimer of warranties, became part of the October sales contract?12
Under the Uniform Commercial Code as adopted in Massachusetts, a definite and seasonable expression of acceptance operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.13 A response which states a condition materially altering the obligation solely to the disadvantage of the offeror is an acceptance expressly conditional on assent to the additional terms.14
Yes. On October 23, 1959, Roto-Lith mailed a written order to Bartlett for a drum of N-132-C emulsion stating the end use as wet pack spinach bags.15 Bartlett prepared an acknowledgment and an invoice on October 26 bearing in conspicuous type the legend that all goods sold without warranties, express or implied, and subject to the terms on reverse side, with terms excluding any and all warranties and limiting seller's liability to replacement of goods that materially differ from the sample.16 The goods were shipped on October 27 and the acknowledgment was received at least no later than the goods.17
Roto-Lith did not protest the terms in the acknowledgment, paid for the emulsion, and used it. Because the acknowledgment stated a condition materially altering the obligation solely to the disadvantage of Roto-Lith, the response constituted an acceptance expressly conditional on assent to the additional terms, and Roto-Lith became bound upon accepting the goods with knowledge of the conditions specified in the acknowledgment.18
The terms of the acknowledgment and invoice, including the disclaimer of warranties, became part of the October sales contract.19
Whether Roto-Lith could raise a new theory on appeal regarding the May order that was not presented to the district court?20
An appellant is not normally permitted to have the benefit of a new theory on appeal.21 The court in its discretion may relax the rule in exceptional cases to prevent a clear miscarriage of justice.22 We do not think the case one for making an exception to the salutary rule that a party is normally entitled to but one day in court.23
No. In May 1959 Roto-Lith ordered a quantity of N-136-F emulsion, which Bartlett knew by its own announced standards was of necessity unfit for the disclosed wet bag purpose.24 Roto-Lith did not advance the arguments it now makes when asked to state its opposition to the direction of a verdict. It in no way called the district court's attention to any distinction between the May and the October orders.25 Roto-Lith was represented by competent counsel and has had an eight-day trial.26 Financially the consequences are not large.27
The case is not one for making an exception to the rule.28
Roto-Lith could not raise a new theory on appeal regarding the May order that was not presented to the district court.29