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Pickwick Well Drilling, Inc. v. Toll Brothers, Inc.

A-1187-97T5 (N.J. Super. App. Div. 1998) (Unpublished)

UCC; COUNTEROFFERS—A letter accompanying a signed contract which contains revised terms, if accepted by the other party, constitutes an amendment to the contract.

A contractor and a developer made an agreement, based upon an amalgamation of documents, providing for the installation of wells and water conditioners at all of the homes in a development. An argument ensued as to whether the contract was non-exclusive or could be canceled at will. Originally, a series of price quotes and comments to them were passed between the contractor and the developer. Then, the developer sent the contractor a different form of contract containing a number of provisions characterized as “boilerplate,” including a provision granting the developer the right to terminate the agreement, with or without cause, upon short notice, and stating that the work was not exclusive. The contractor signed this agreement form, but delivered it to the developer with a letter that stated “acceptance of the contract is expressly conditioned upon our proposal and conditions of sale attached herewith, including the terms of this letter, all of which are meant to supercede terms of the [revised agreement].” The developer’s project manager signed the package and it was returned as “accepted by” the contractor to the developer. An issue raised by the document exchanges was whether the clear language of the contractor’s letter controlled the relationship between the parties or constituted only a written confirmation of an oral or informal agreement. The Court ruled in favor of the contractor. The Court found that the contractor’s letter and attachments operated as a counteroffer without regard to whether the agreement was governed under the common law or under the UCC. Therefore, the developer’s signing of the revised agreement after receiving the contractor’s letter could not be viewed as anything other than an assent to the terms of that counteroffer, which terms would then control the agreement. The contractor also argued that it was entitled to punitive damages under the theory that the developer’s actions constituted a “tortious breach of contract.” After reviewing the law dealing with punitive damages, in contract actions as well as in “hybrid” contract and tort actions, the Court concluded that punitive damages were not available under this set of facts.


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