Frank’s Maintenance and Engineering, Inc., orally ordered steel tubing from C.A.
Roberts Co. for use in the manufacture of motor
cycle front fork tubes. Since these
front fork tubes bear the bulk of the weight of a motorcycle, the steel used must be of
high quality. Roberts Co. sent an acknowledgment with conditions of sale including
one that limited consequential damages and restri
cted remedies available upon
breach by requiring claims for defective equipment to be promptly made upon
receipt. The conditions were located on the back of the acknowledgment. The legend
“conditions of sale on reverse side” was stamped over so that on fir
st appearance it
read “No conditions of sale on reverse side.” Roberts delivered the order in January.
The steel had no visible defects; however, when Frank’s Maintenance began using the
steel in its manufacture in the summer, it discovered that the steel
was pitted and
cracked beyond repair. Frank’s Maintenance informed Roberts Co. of the defects,
revoked its acceptance of the steel, and sued for breach of warranty of
merchantability. Is the limitation of rights enforceable?
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