
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1554                                    IONICS, INC.,                                Plaintiff - Appellee,                                          v.                                ELMWOOD SENSORS, INC.,                                Defendant - Appellant.                                 ____________________                                     ERRATA SHEET               The opinion of this court issued on April 8, 1997 is amended          as follows:               Page 9, line 15 change "Roto-Lith's" to "Bartlett's"               Page 12, line 8 insert period between "(1)" and footnote "5"                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1554                                    IONICS, INC.,                                Plaintiff - Appellee,                                          v.                                ELMWOOD SENSORS, INC.,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Morris E. Lasker,* Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Daryl J. Lapp, with whom Thane D. Scott, Stephen L. Coco and               _____________            ______________  _______________          Palmer & Dodge LLP were on brief for appellant.          __________________               Tina  M.  Traficanti,  with  whom  Anthony  M.  Doniger  and               ____________________               ____________________          Sugarman, Rogers,  Barshak  &  Cohen,  P.C.  were  on  brief  for          ___________________________________________          appellee.                                 ____________________                                    April 8, 1997                                 ____________________                                        ____________________          *  Of the Southern District of New York, sitting by designation.                    TORRUELLA,   Chief  Judge.    Ionics,  Inc.  ("Ionics")                    TORRUELLA,   Chief  Judge.                                 ____________          purchased thermostats from Elmwood  Sensors, Inc. ("Elmwood") for          installation  in  water dispensers  manufactured  by  the former.          Several  of  the  dispensers  subsequently  caused   fires  which          allegedly  resulted from defects  in the  sensors.   Ionics filed          suit  against Elmwood in order  to recover costs  incurred in the          wake  of  the fires.   Before  trial,  the district  court denied          Elmwood's  motion for  partial  summary judgment.   The  District          Court of Massachusetts subsequently  certified to this court "the          question whether, in the  circumstances of this case,    2-207 of          M.G.L. c. 106 has been properly applied."   Order of the district          court, November 6, 1995.                                I.  Standard of Review                                I.  Standard of Review                    We  review the grant  or denial of  summary judgment de                                                                         __          novo.  See Borschow  Hosp. & Medical Supplies v.  C sar Castillo,          ____   ___ __________________________________     _______________          Inc., 96 F.3d 10, 14 (1st Cir. 1996).          ____                                   II.  Background                                   II.  Background                    The  facts of  the case  are not  in dispute.   Elmwood          manufactures and sells  thermostats.  Ionics  makes hot and  cold          water dispensers, which  it leases  to its customers.   On  three          separate occasions, Ionics purchased thermostats from Elmwood for          use in its water dispensers.1  Every  time Ionics made a purchase          of  thermostats from Elmwood, it sent the latter a purchase order          form which  contained, in small  type, various "conditions."   Of          the20 conditions onthe order form,two areof particular relevance:                                        ____________________          1  Orders were placed in March, June, and September 1990.                                         -2-                      18.    REMEDIES -- The  remedies provided                      Buyer herein shall  be cumulative, and in                      addition to any  other remedies  provided                      by law or equity.   A waiver of  a breach                      of   any   provision  hereof   shall  not                      constitute a waiver of any  other breach.                      The  laws of the  state shown  in Buyer's                      address printed  on the masthead  of this                      order  shall  apply  in the  construction                      hereof.                      19.    ACCEPTANCE  --  Acceptance  by the                      Seller of  this order  shall be upon  the                      terms and conditions set forth in items 1                      to  17 inclusive,  and elsewhere  in this                      order.   Said  order  can be  so accepted                      only on  the exact  terms herein  and set                      forth.  No terms  which are in any manner                      additional  to  or  different from  those                      herein set  forth shall become a part of,                      alter or in any way control the terms and                      conditions herein set forth.                    Near  the time when  Ionics placed its  first order, it          sent Elmwood a letter that it  sends to all of its new suppliers.          The letter states, in part:                      The   information   preprinted,   written                      and/or  typed  on our  purchase  order is                      especially important  to us.   Should you                      take   exception  to   this  information,                      please  clearly express  any reservations                      to us in writing.  If you do not, we will                      assume  that  you  have  agreed   to  the                      specified terms and that you will fulfill                      your   obligations   according   to   our                      purchase  order.   If necessary,  we will                      change  your invoice and pay your invoice                      according to our purchase order.                    Following receipt  of each order, Elmwood  prepared and          sent an  "Acknowledgment" form containing the  following language          in small type:                      THIS WILL ACKNOWLEDGE RECEIPT  OF BUYER'S                      ORDER AND STATE  SELLER'S WILLINGNESS  TO                      SELL THE GOODS ORDERED BUT ONLY UPON  THE                      TERMS AND CONDITIONS SET FORTH HEREIN AND                                         -3-                      ON   THE   REVERSE  SIDE   HEREOF   AS  A                      COUNTEROFFER.   BUYER SHALL BE  DEEMED TO                      HAVE ACCEPTED SUCH COUNTEROFFER UNLESS IT                      IS  REJECTED IN  WRITING WITHIN  TEN (10)                      DAYS  OF  THE  RECEIPT  HEREOF,  AND  ALL                      SUBSEQUENT  ACTION  SHALL BE  PURSUANT TO                      THE   TERMS   AND   CONDITIONS  OF   THIS                      COUNTEROFFER  ONLY;   ANY  ADDITIONAL  OR                      DIFFERENT  TERMS  ARE HEREBY  OBJECTED TO                      AND SHALL NOT BE BINDING UPON THE PARTIES                      UNLESS SPECIFICALLY AGREED TO  IN WRITING                      BY SELLER.                    Although  this passage refers  to a  "counteroffer," we          wish to emphasize  that this  language is not  controlling.   The          form   on   which   the   language   appears   is   labelled   an          "Acknowledgment"  and the  language  comes under  a heading  that          reads "Notice of Receipt of Order."  The form, taken  as a whole,          appears  to contemplate  an order's  confirmation rather  than an          order's rejection in the form of a counteroffer.                    It  is undisputed that  the Acknowledgment was received          prior  to the  arrival of  the shipment  of goods.   Although the          district court,  in its ruling  on the  summary judgment  motion,          states that "with each  shipment of thermostats, Elmwood included          an Acknowledgment Form," Order of the District  Court, August 23,          1995, this statement cannot  reasonably be taken as a  finding in          support of the  claim that  the Acknowledgment  and the  shipment          arrived together.   First, in its certification order,  the court          states that "[t]he purchaser, after receiving the Acknowledgment,                                        _____          accepted  delivery  of  the  goods  without  objection."    Order          Pursuant to 28 U.S.C.    1292(b), Nov. 6, 1995  (emphasis added).          This  language is  clearer  and more  precise  than the  previous          statement and suggests that  the former was simply a  poor choice                                         -4-          of phrasing.   Furthermore, Ionics has  not disputed the  arrival          time  of the  Acknowledgment.   In its  Memorandum in  Support of          Defendant's Motion for  Partial Summary Judgment Elmwood  stated,          under the heading  of "Statements of Undisputed Facts," that "for          each  of the  three  orders, Ionics  received the  Acknowledgment          prior to receiving the  shipment of thermostats."  Memorandum  in          Support of Defendant's Motion for Partial Summary Judgment, at 3.          In  its own memorandum, Ionics argued that there existed disputed          issues of material  fact, but did not  contradict Elmwood's claim          regarding  the   arrival  of   the  Acknowledgment  Form.     See                                                                        ___          Plaintiff's  Memorandum   in   Support  of   its  Opposition   to          Defendant's  Motion   for  Partial  Summary   Judgment  at  4-10.          Furthermore,  in its appellate brief,  Ionics does not argue that          the time of  arrival of  the Acknowledgment Form  is in  dispute.          Ionics  repeats  language  from   the  district  court's  summary          judgment ruling that "with  each shipment of thermostats, Elmwood          included an Acknowledgment Form," Appellee's Brief at 7, but does          not argue that the issue  is in dispute or confront  the language          in Elmwood's brief which states that "[i]t is undisputed that for          each  of the  three  orders, Ionics  received the  Acknowledgment          prior  to receiving  the shipment  of thermostats."   Appellant's          Brief at 6.                    As  we have  noted, the  Acknowledgment Form  expressed          Elmwood's  willingness  to   sell  thermostats   on  "terms   and          conditions" that the  Form indicated were  listed on the  reverse                                         -5-          side.  Among the terms and conditions listed on the  back was the          following:                      9. WARRANTY                         All  goods   manufactured  by  Elmwood                      Sensors, Inc. are  guaranteed to be  free                      of  defects  in material  and workmanship                      for a  period of ninety  (90) days  after                      receipt  of  such   goods  by  Buyer   or                      eighteen   months   from   the  date   of                      manufacturer [sic] (as  evidenced by  the                      manufacturer's   date   code),  whichever                      shall be  longer.   THERE  IS NO  IMPLIED                      WARRANTY OF MERCHANTABILITY AND  NO OTHER                      WARRANTY,  EXPRESSED  OR IMPLIED,  EXCEPT                      SUCH  AS IS  EXPRESSLY SET  FORTH HEREIN.                      SELLER   WILL  NOT  BE   LIABLE  FOR  ANY                      GENERAL,   CONSEQUENTIAL   OR  INCIDENTAL                      DAMAGES, INCLUDING WITHOUT LIMITATION ANY                      DAMAGES  FROM LOSS  OF PROFITS,  FROM ANY                      BREACH  OF  WARRANTY  OR FOR  NEGLIGENCE,                      SELLER'S LIABILITY  AND BUYER'S EXCLUSIVE                      REMEDY  BEING  EXPRESSLY  LIMITED TO  THE                      REPAIR  OF  DEFECTIVE  GOODS  F.O.B.  THE                      SHIPPING  POINT  INDICATED  ON  THE  FACE                      HEREOF  OR THE REPAYMENT  OF THE PURCHASE                      PRICE UPON THE RETURN OF THE GOODS OR THE                      GRANTING  OF  A  REASONABLE ALLOWANCE  ON                      ACCOUNT OF  ANY  DEFECTS, AS  SELLER  MAY                      ELECT.                    Neither party  disputes that they entered  into a valid          contract  and  neither  disputes  the  quantity   of  thermostats          purchased,  the price paid, or  the manner and  time of delivery.          The only issue in dispute is the extent of Elmwood's liability.                    In  summary, Ionics'  order  included language  stating          that  the contract  would be  governed exclusively  by  the terms          included  on the purchase  order and that  all remedies available          under state law would  be available to Ionics.   In a  subsequent          letter, Ionics added that Elmwood must indicate any objections to          these  conditions in writing.   Elmwood, in turn,  sent Ionics an                                         -6-          Acknowledgment stating that the contract was governed exclusively          by the terms in the Acknowledgment, and Ionics was given ten days          to reject this "counteroffer."   Among the terms included  in the          Acknowledgment is a  limitation on Elmwood's  liability.  As  the          district court  stated, "the  terms are diametrically  opposed to          each other on the issue of whether all warranties  implied by law          were  reserved or waived."   Order of the  District Court, August          23, 1995.                    We face, therefore,  a battle  of the forms.   This  is          purely a  question of  law.   The dispute  turns  on whether  the          contract is governed  by the  language after  the comma  in    2-          207(1) of the Uniform Commercial Code, according to the rule laid          down by this court in Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297                                _______________    ___________________          F.2d 497 (1st Cir. 1962), or whether it is governed by subsection          (3) of  the Code  provision, as  enacted  by both  Massachusetts,          Mass.  Gen. L. ch. 106,   2-207  (1990 and 1996 Supp.), and Rhode          Island, R.I. Gen. Laws    6A-2-207 (1992).2  We find the  rule of          Roto-Lith  to be in conflict  with the purposes  of section 2-207          _________          and, accordingly, we overrule  Roto-Lith and find that subsection                                         _________          (3) governs the contract.3   Analyzing the case under  section 2-                                        ____________________            There  is   some  uncertainty   on  the  question   of  whether          Massachusetts or Rhode Island  law governs.  We need  not address          this issue, however, because the two states have adopted versions          of  section  2-207  of  the  Uniform  Commercial  Code  that  are          virtually equivalent.            Although panel  decisions of this court  are ordinarily binding          on  newly  constituted  panels,  that  rule does  not  obtain  in          instances where, as here, a departure is compelled by controlling          authority  (such as  the interpreted  statute  itself).   In such          relatively rare instances, we  have sometimes chosen to circulate                                         -7-          207, we conclude that Ionics defeats Elmwood's motion for partial          summary judgment.                                 III.  Legal Analysis                                 III.  Legal Analysis                    Our analysis  begins with  the statute.   Section 2-207          reads as follows:                        2-207.   Additional Terms in Acceptance                      or Confirmation                      (1)  A definite and seasonable expression                      of acceptance or  a written  confirmation                      which  is sent  within a  reasonable time                      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.                      (2)   The  additional or  different terms                      are  to be  construed  as  proposals  for                      addition  to  the   contract.     Between                      merchants  such terms become  part of the                      contract unless:                         (a)    the  offer expressly  limits                         acceptance  to  the  terms  of  the                         offer;                         (b)  they materially alter it; or                         (c)  notification  of objection  to                         them has already  been given or  is                         given  within   a  reasonable  time                         after notice of them is received.                       (3)    Conduct   by  both  parties  which                      recognizes the existence of a contract is                                        ____________________          the  proposed overruling  opinion to  all  active members  of the          court  prior  to publication  even  though the  need  to overrule          precedent is reasonably clear.  See, e.g., Wright v. Park, 5 F.3d                                          ___  ____  ______    ____          586, 591 n.7 (1st  Cir. 1994); Trailer Marine Transport  Corp. v.                                         _______________________________          Rivera  V zquez,  977  F.2d  1, 9  n.5  (1st  Cir.  1992).   This          _______________          procedure  is,  of  course, informal,  and  does  not  preclude a          suggestion of rehearing  en banc on any issue.   We have followed          that praxis here and can report that none of the active judges of          this  court  has  objected to  the  panel's  analysis  or to  its          conclusion that Roto-Lith has  outlived its usefulness as circuit                          _________          precedent.                                         -8-                      sufficient  to  establish a  contract for                      sale although the writings of the parties                      do  not  otherwise establish  a contract.                      In  such case the terms of the particular                      contract consist of  those terms on which                      the  writings  of   the  parties   agree,                      together  with  any  supplementary  terms                      incorporated  under any  other provisions                      of this chapter.          Mass. Gen. L. ch. 106,   2-207 (1990 and 1996 Supp.).                    In  Roto-Lith,  Roto-Lith  sent  a  purchase  order  to                        _________          Bartlett,  who responded  with  an  acknowledgment that  included          language purporting to limit Bartlett's liability.  Roto-Lith did          not object.  Roto-Lith, 297 F.2d at 498-99.  This court held that                       _________          "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.'"   Id. at 500.   This holding  took the                                       ___          case outside of section 2-207 by applying the exception after the          comma in subsection  (1).  The court then reverted  to common law          and concluded  that Roto-Lith "accepted the  goods with knowledge          of the  conditions specified in the  acknowledgment [and thereby]          became bound."  Id. at 500.  In other words,  the Roto-Lith court                          ___                               _________          concluded  that  the defendant's  acceptance  was conditional  on          assent,   by  the  buyer,  to  the   new  terms  and,  therefore,          constituted  a counter  offer rather  than an  acceptance.   When          Roto-Lith  accepted  the  goods   with  knowledge  of  Bartlett's          conditions,  it  accepted the  counteroffer and  Bartlett's terms          governed the contract.  Elmwood argues that Roto-Lith governs the                                                      _________                                         -9-          instant   appeal,   implying   that  the   terms   of   Elmwood's          acknowledgment govern.                    Ionics claims that the instant  case is distinguishable          because  in Roto-Lith "the  seller's language limiting warranties                      _________          implied  at law was  proposed as an  addition to, but  was not in          conflict  with, the explicit terms of  the buyer's form.  [In the          instant case] the explicit  terms of the parties'  forms conflict          with and reject each other."  Appellee's Brief at 21.                    We do  not believe  that Ionics'  position sufficiently          distinguishes  Roto-Lith.   It  would  be  artificial to  enforce                         _________          language  that  conflicts  with  background  legal   rules  while          refusing  to enforce  language  that conflicts  with the  express          terms  of the contract.  Every contract is assumed to incorporate          the existing legal norms that  are in place.  It is  not required          that every contract explicitly spell out the governing law of the          jurisdiction.  Allowing  later forms  to govern  with respect  to          deviations  from the background rules but not deviations from the          terms in  the contract  would imply  that only the  terms in  the          contract  could be relied upon.   Aside from  being an artificial          and arbitrary distinction, such a  standard would, no doubt, lead          parties  to include more of the background rules in their initial          forms, making forms  longer and more  complicated.  Longer  forms          would  be more difficult and  time consuming to  read -- implying          that  even  fewer forms  would be  read  than under  the existing          rules.  It is the failure of  firms to read their forms that  has                                         -10-          brought this case before us, and we do not wish  to engender more          of this type of litigation.                    Our inquiry,  however, is  not complete.   Having found          that we cannot distinguish  this case from Roto-Lith, we  turn to                                                     _________          the Uniform  Commercial  Code, quoted  above.   A plain  language          reading of section 2-207 suggests that subsection (3) governs the          instant  case.   Ionics sent  an initial  offer to  which Elmwood          responded with its "Acknowledgment."   Thereafter, the conduct of          the parties established  the existence of a  contract as required          by section 2-207(3).                    Furthermore,  the case before  us is squarely addressed          in comment 6, which states:                      6.   If  no answer  is received  within a                      reasonable  time  after additional  terms                      are   proposed,  it  is   both  fair  and                      commercially sound to  assume that  their                      inclusion  has been  assented to.   Where                      clauses on confirming forms sent  by both                      parties  conflict[,]  each party  must be                      assumed  to  object to  a  clause of  the                      other   conflicting   with  one   on  the                      confirmation  sent  by  himself.    As  a                      result[,] the requirement  that there  be                      notice of  objection  which is  found  in                      subsection  (2) [of   2-207] is satisfied                      and the  conflicting terms do  not become                      part  of the contract.  The contract then                      consists   of    the   terms   originally                      expressly agreed  to, terms on  which the                      confirmations  agree, and  terms supplied                      by this Act.          Mass. Gen. L. ch.  106,   2-207, Uniform Commercial  Code Comment          6.  This  Comment addresses  precisely the facts  of the  instant          case.   Any  attempt at  distinguishing the  case before  us from          section 2-207 strikes us as disingenuous.                                         -11-                    We are faced, therefore, with a contradiction between a          clear precedent of this court, Roto-Lith, which suggests that the                                         _________          language after the comma in subsection (1) governs, and the clear          dictates  of the  Uniform  Commercial Code,  which indicate  that          subsection (3) governs.  It  is our view that the two  cannot co-          exist and  the case at  bar offers a graphic  illustration of the          conflict.   We  have, therefore,  no choice  but to  overrule our          previous  decision in Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297                                _______________    ___________________          F.2d 497 (1st  Cir. 1962).   Our decision brings this  circuit in          line with the  majority view on  the subject and  puts to rest  a          case  that has  provoked considerable  criticism from  courts and          commentators and alike.4                     We  hold, consistent  with section 2-207  and Official          Comment 6, that where  the terms in two forms  are contradictory,          each  party is assumed to object to the other party's conflicting          clause.   As a result, mere acceptance  of the goods by the buyer          is  insufficient to infer consent to the seller's terms under the          language of  subsection (1).5  Nor  do such terms  become part of                                        ____________________            See, e.g.,  Step-Saver Data  Systems, Inc. v.  Wyse Technology,            ___  ____   ______________________________     _______________          939 F.2d  91, 101 (3d Cir.  1991); St. Charles Cable  TV, Inc. v.                                             ___________________________          Eagle  Comtronics, Inc., 687 F.  Supp. 820, 828  & n.19 (S.D.N.Y.          _______________________          1988); Daitom  v. Pennwalt Corp.,  741 F.2d  1569, 1576-77  (10th                _______     ______________          Cir. 1984); Luria Bros. v. Pietlet  Bros. Scrap Iron & Metal, 600                      ___________    _________________________________          F.2d 103, 113 (7th Cir. 1979); Dorton  v. Collins & Aikman Corp.,                                         ______     ______________________          453 F.2d 1161,  1168 & n.5 (6th Cir. 1972);   ;  James J. White &          Robert S. Summers, 1 Uniform Commercial Code,   1-3, at 12, 16-17          (1995); Murray, Intention over Terms: An Exploration of UCC 2-207          &  New Section 60, Restatement  of Contracts, 37  Fordham L. Rev.          317, 329 (1969).            See  also  Official Comment  3  ("If  [additional or  different            _________          terms] are such as materially to alter the original bargain, they          will  not be  included unless  expressly agreed  to by  the other                                         -12-          the  contract  under  subsection   (2)  because  notification  of          objection has  been given  by the  conflicting forms.   See    2-                                                                  ___          207(2)(c).                    The   alternative  result,  advocated  by  Elmwood  and          consistent with Roto-Lith, would undermine the role of section 2-                          _________          207.   Elmwood  suggests that  "a seller's  expressly conditional          acknowledgment  constitutes  a counteroffer  where  it materially          alters  the terms proposed by  the buyer, and  the seller's terms          govern the  contract between the  parties when the  buyer accepts          and pays  for the goods."   Appellant's Brief at 12.   Under this          view, section 2-207 would no longer apply to cases in which forms          have been exchanged and subsequent disputes reveal that the forms          are contradictory.  That is, the last form would always govern.                    The purpose  of section 2-207, as  stated in Roto-Lith,                                                                 _________          "was to modify the strict principle that a response not precisely          in accordance with the offer was a rejection and a counteroffer."          Roto-Lith,  297 F.2d at 500; see  also Dorton v. Collins & Aikman          _________                    _________ ______    ________________          Corp.,  453 F.2d  1161,  1165-66 (6th  Cir.  1972) (stating  that          _____          section  2-207 "was  intended to  alter the  'ribbon-matching' or          'mirror'  rule of  common  law,  under  which  the  terms  of  an          acceptance  or confirmation were required to  be identical to the          terms of the offer").    Under the holding advocated  by Elmwood,          virtually any response that added to or altered the terms of  the          offer would be  a rejection and a counteroffer.   We do not think                                        ____________________          party.").                                         -13-          that such a result is consistent with the intent of section 2-207          and we believe it to be expressly contradicted by Comment 6.                    Applied  to  this  case,   our  holding  leads  to  the          conclusion  that the  contract is  governed by  section 2-207(3).          Section 2-207(1) is inapplicable because Elmwood's acknowledgment          is conditional on assent to the additional terms.  The additional          terms do not become a part of the contract under section 2-207(2)          because notification of objection  to conflicting terms was given          on  the order  form and  because the  new terms  materially alter          those  in the  offer.    Finally,  the  conduct  of  the  parties          demonstrates the existence of a  contract, as required by section          2-207(3).   Thus, section 2-207(3)  applies and the  terms of the          contract are to be determined in accordance with that subsection.                    We conclude, therefore, that section  2-207(3) prevails          and  "the terms of the particular contract consist of those terms          on which the  writings of  the parties agree,  together with  any          supplementary terms incorporated  under any  other provisions  of          this chapter."  Mass. Gen. L. ch. 106,   2-207(3).                    The reality of modern commercial dealings, as this case          demonstrates, is that not all participants read their forms.  See                                                                        ___          James J. White & Robert S. Summers, Uniform Commercial Code   1-3                                              _______________________          at  6-7 (4th ed. 1995).  To  uphold Elmwood's view would not only          fly  in the face  of Official Comment  6 to section  2-207 of the          Uniform Commercial Code, and the overall purpose of that section,          it would also fly in the  face of good sense.  The sender  of the          last  form  (in  the  instant  case,  the  seller)  could  insert                                         -14-          virtually any conditions it  chooses into the contract, including          conditions  contrary to  those in  the initial  form.   The final          form,  therefore, would give its sender the power to re-write the          contract.   Under our holding  today, we at  least ensure that  a          party will not be held to terms that are directly contrary to the          terms it has included in its own form.  Rather than assuming that          a failure to object to the  offeree's conflicting terms indicates          offeror's   assent  to  those  terms,  we  shall  make  the  more          reasonable inference that  each party continues to  object to the          other's contradictory terms.  We think  it too much to grant  the          second form the power to contradict and override the terms in the          first form.                                         -15-                                   IV.  Conclusion                                   IV.  Conclusion                    For  the reasons  stated herein,  the district  court's          order denying  Elmwood's motion  for partial summary  judgment is          affirmed  and  the case  is remanded  to  the district  court for          affirmed                    remanded            ________                    ________          further proceedings.                                         -16-
