
USCA1 Opinion

	




          February 16, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1444                       IN RE:  NEWPORT PLAZA ASSOCIATES, L.P.,                                       Debtor.                                   _______________                           NEWPORT PLAZA ASSOCIATES, L.P.,                                Plaintiff, Appellant,                                          v.                                DURFEE ATTLEBORO BANK,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Robert  S. Bruzzi, with whom James J. Beaulieu was on brief,               _________________            _________________          for appellant.               Michael R.  McElroy,  with whom  Schacht  & McElroy  was  on               ___________________              __________________          brief, for appellee.                              _________________________                              _________________________                    SELYA,   Circuit  Judge.    After  entering  insolvency                    SELYA,   Circuit  Judge.                             ______________          proceedings,   plaintiff-appellant   Newport   Plaza   Associates          (Newport),  a  Rhode  Island  limited partnership,  commenced  an          adversary proceeding against Durfee Attleboro Bank (the Bank), in          which it claimed that the Bank  failed to honor an oral agreement          concerning the resumption of financing for a stalled construction          project.    The  bankruptcy court  and  the  district court  both          rejected the  claim.  The third  time is not the  charm:  because          the  record shows  beyond peradventure  that the  parties entered          into a  subsequent written contract, the terms  of which directly          contradicted,   and  therefore   superseded,  the   alleged  oral          agreement, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    On February 8, 1988,  Newport executed and delivered to          the   Bank  a   promissory  note,   construction  mortgage,   and          construction loan agreement in order to finance the erection of a          shopping plaza in Newport, Rhode Island.   Construction came to a          screeching halt that November due to difficulties between Newport          and  its general contractor, DRL, Inc.   When DRL and a number of          subcontractors placed mechanics'  liens on the  property, Newport          defaulted on the loan.                    Newport tried repeatedly to work out an agreement under          which the Bank would be willing to restart the project.   Newport          claims  that  on December  20, 1988,  the  Bank agreed  to resume          financing  the  work  pursuant  to  the  terms  of  the  original          construction  loan  agreement  if  Newport,  within  a reasonable                                          2          period of  time, resolved the mechanics'  liens, brought interest          payments current,  reaffirmed  occupancy commitments  from  third          parties,  and replaced  DRL with  a suitably  qualified builder.1          Newport also  claims that  it complied  with these conditions  no          later than March of 1989,  but that the Bank reneged on  the oral          agreement.                    On October  13, 1989,  with the project  still dormant,          Newport  submitted a written proposal to the Bank anent continued          financing.  This proposal did not mention the oral agreement.  By          letter  dated November 1, 1989, the Bank notified Newport that it          had "decided not to  allow restarting of the project."   Instead,          the Bank offered,  "without waiving any . .  . rights," to accept          $881,000 in full  satisfaction of the balance due ($1,381,000) on          the  promissory note.  The  Bank's terms required  Newport, if it          accepted  the offer, to tender  $881,000 in a  lump sum within 90          days  and, in the interim,  to submit weekly  progress reports on          the status  of the project  and its efforts  to obtain  the funds          needed to buy  out the Bank's position.  The  letter, the text of          which  is reproduced in the  appendix, gave Newport  two weeks in          which to accept the offer.   It made no reference to  the alleged          oral agreement.                    Newport's  partners  signed  and  returned  the  letter          before the appointed deadline.   Thereafter, they failed to  make          the lump-sum payment within  the stipulated 90-day period.   When                                        ____________________               1The Bank  steadfastly denies these allegations.   Since the          case was  decided  below  on  summary  judgment,  we  assume  for          argument's sake that the oral agreement existed.                                          3          the Bank  initiated foreclosure  proceedings, Newport  sought the          protection of Chapter 11.2                    In  due course,  Newport filed  suit in  the bankruptcy          court  alleging a  breach  of the  oral  agreement.   After  some          procedural  skirmishing,  not  material  for  our  purposes,  the          bankruptcy court granted the  Bank's motion for summary judgment.          In re Newport Plaza  Assocs., 129 B.R. 326 (Bankr.  D.R.I. 1991).          ____________________________          The court  held that  the letter exchange  constituted an  accord          between  the  parties,  wherein  the  Bank  agreed  to  discharge          Newport's  original  obligation in  return  for  Newport's timely          payment of a  portion of the  outstanding balance.   Id. at  327.                                                               ___          The  court ruled that because  the Bank explicitly  stated in the          offering  letter  that it  would  not  allow  restarting  of  the          project, and  Newport  accepted the  terms  of that  letter,  the          exchange "created new contractual obligations between the parties          and replaced the  alleged December 20, 1988 oral agreement  . . .          ."   Id.  The bankruptcy court ruled, alternatively, that Newport               ___          had neither  established the existence  of an oral  agreement nor          shown  performance of  its obligations thereunder.3   See  id. at                                                                ___  ___          327 n.1.                    Newport  appealed.    The  district  court  convened  a                                        ____________________               2The  bankruptcy  court,  following  a   contested  hearing,          eventually  granted  the  Bank's   motion  for  relief  from  the          automatic   stay.     The   foreclosure  proceedings   have  been          consummated.                 3Because  this appeal  is susceptible  to resolution  on the          ground that the letter  exchange extinguished any oral agreement,          see infra, we do not consider this alternative holding.          ___ _____                                          4          hearing, afforded  de novo review, and  rendered summary judgment                             __ ____          ore  tenus.  In its  bench decision, the  district court reasoned          ___  _____          that  whether an oral agreement existed was of no consequence, as          any  such  agreement  was  "completely  inconsistent"   with  the          subsequent exchange of correspondence.  That correspondence,  the          court   ruled,  constituted  an  accord,  superseding  any  prior          agreement  between  the parties.   On  March  3, 1992,  the clerk          entered final judgment.                    Newport again  appeals.   The gist  of its  argument is          that the  district court  erred in holding  that, as a  matter of          law, Newport  relinquished the right to  resuscitate the original          financing arrangement   a right supposedly conferred by  the oral          agreement    when it signed  and returned the  November 1 letter.          Because we agree with the district court that the letter exchange          constituted a  valid contract in which  the parties unambiguously          expressed their mutual intention  that the Bank would  not supply          funds  to restart  the project,  we  reject Newport's  attempt to          enforce the prior oral agreement and affirm the entry of judgment          below.          II.  THRESHOLD LEGAL MATTERS          II.  THRESHOLD LEGAL MATTERS                    We  begin by  explicating certain  legal  principles in          order to set the stage for a discussion of the merits.                          A.  The Summary Judgment Standard.                          A.  The Summary Judgment Standard.                              _____________________________                    The summary judgment standard  is familiar and has been          frequently  elucidated.   Rather than  attempting to  reinvent so          serviceable a wheel, we  merely observe that, as the  civil rules                                          5          themselves  provide, summary  judgment is  appropriate when  "the          pleadings,   depositions,   answers   to   interrogatories,   and          admissions on  file, together with  the affidavits, if  any, show          that  there is no genuine issue as  to any material fact and that          the moving party is entitled  to a judgment as a matter  of law."          Fed. R. Civ.  P. 56(c).  The opponent of  a properly focused Rule          56 motion must demonstrate,  by competent evidence, the existence          of a  triable issue  which is  both genuine  and material  to its          claim.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48                  ___ ________    ___________________          (1986); Garside  v. Osco  Drug, Inc., 895  F.2d 46, 48  (1st Cir.                  _______     ________________          1990).  "In this context, 'genuine' means that the evidence about          the fact is  such that a reasonable jury  could resolve the point          in favor of the nonmoving party."  United States v. One Parcel of                                             _____________    _____________          Real Property, Etc. (Great  Harbor Neck), 960 F.2d 200,  204 (1st          ________________________________________          Cir. 1992).  "In the same context, 'material' means that the fact          is one susceptible  of altering the  outcome of the  litigation."          Rivera-Muriente  v. Agosto-Alicea,  959 F.2d  349, 352  (1st Cir.          _______________     _____________          1992).                    We afford  plenary review  to  the entry  of a  summary          judgment.   Garside, 895  F.2d at 48.   In so  doing, this court,                      _______          like the courts  below, must read the  record in the  manner most          gratifying to the party  opposing summary judgment, indulging all          reasonable  inferences  in  that  party's  favor.    See  Rivera-                                                               ___  _______          Muriente,  959 F.2d at 352;  Griggs-Ryan v. Smith,  904 F.2d 112,          ________                     ___________    _____          115 (1st Cir. 1990).                                  B.  Choice of Law.                                  B.  Choice of Law.                                      _____________                                          6                    In this case, the  underlying contract claim depends on          state  law.   The  parties briefed  and  argued the  case  on the          apparent  understanding  that   Rhode  Island  law  governs   the          significance  of their  actions and  the interpretation  of their          agreements.   Both  lower courts  adjudicated the  controversy on          that basis.   When opposing  parties agree to  the source  of the          substantive law  that controls their rights  and obligations, and          no  jurisdictional concerns are present, a court is at liberty to          accept such an agreement without independent inquiry.  See Moores                                                                 ___ ______          v.  Greenberg, 834 F.2d 1105, 1107 n.2 (1st Cir. 1987); Mathewson              _________                                           _________          Corp. v.  Allied Marine Indus., Inc., 827 F.2d 850 , 853 n.3 (1st          _____     __________________________          Cir. 1987).  We do so here.                                C.  What's in a Name?                                C.  What's in a Name?                                    ________________                    The parties have expended considerable  effort debating          whether the November 1 letter agreement should be evaluated as an          accord and satisfaction or as a novation.  We deem it unnecessary          to venture into this Serbonian bog.                    The  Rhode  Island   Supreme  Court  has  traditionally          manifested a  concern with  substance  rather than  form in  this          fuliginous  corner of  the  law, hesitating  to  draw fine  lines          between  these two  closely  allied kinds  of contracts  where no          necessity exists for  doing so.   See,  e.g., Mello  v. Coy  Real                                            ___   ____  _____     _________          Estate  Co.,  234  A.2d  667,  671-72  (R.I. 1967)  (noting  that          ___________          dissimilarities  between the  two theories  are frequently  of no          concern,  as  both  "operate  to  discharge all  the  rights  and          obligations emanating from a  prior agreement"); Salo Landscape &                                                           ________________                                          7          Constr. Co. v. Liberty Elec. Co., 376 A.2d 1379, 1382 (R.I. 1977)          ___________    _________________          (holding that, when the parties' subsequent agreement created new          contractual  rights  and  obligations  which  extinguished  those          arising  under the original contract,  "it matters not" whether a          court  refers  to  the  subsequent  agreement  as an  accord  and          satisfaction  or as a rescission  followed by the  formation of a          new contract); see also Masse  v. Masse, 313 A.2d 642,  645 (R.I.                         ___ ____ _____     _____          1974)   (stating  that  either   a  release  or   an  accord  and          satisfaction of  an alimony  judgment "will  bind the  parties if          fully complied with and supported  by sufficient consideration").          Federal courts,  construing state  law, have often  exhibited the          same  disinclination.     For  example,   the  Seventh   Circuit,          confronted with  an analogous  fact  pattern, chose  practicality          over pettifoggery.  See Calder v. Camp Grove State Bank, 892 F.2d                              ___ ______    _____________________          629,  633 (7th Cir. 1990)  (concluding that a  "difference in the          characterization of  the [agreement] does not  affect the outcome          of  this case, since, under Illinois law releases, novations, and          accords  and  satisfactions  are  all contracts  subject  to  the          requirement  of mutual  intent and the  constraints of  the parol          evidence rule").                    The lesson to be learned from all of this is that, when          it would serve  no useful purpose  to distinguish between  accord          and satisfaction, on  the one  hand, and novation,  on the  other          hand, courts should refrain  from performing what will amount  to          no more than an exercise  in semantics.  So  it is here.  If  the          November 1 agreement  constitutes a valid contract, it  binds the                                          8          parties  in substantially the same  manner whether we  call it an          accord and satisfaction or a novation, operating to discharge all          the rights  and obligations  emanating from the  preexisting oral          agreement.          III.  ANALYSIS          III.  ANALYSIS                    The  crux of  this appeal  involves a dispute  over the          interpretation of the letter agreement.  We have recognized that,          in  certain circumstances,  summary  judgment  is an  appropriate          vehicle for resolving contract-interpretation  disputes.  The key          is the lack of any ambiguity.  See FDIC v. Singh, 977 F.2d 18, 21                                         ___ ____    _____          (1st Cir. 1992);  see also Fashion House,  Inc. v. K Mart  Corp.,                            ___ ____ ____________________    _____________          892  F.2d  1076,  1083 (1st  Cir.  1989)  (same  rule applies  in          directed-verdict context).   It is only when ambiguity looms that          the interpretation  of  contract language,  itself  acknowledged,          becomes a question of fact for the jury rather than a question of          law  for the judge.  See Singh, 977  F.2d at 21; In re Navigation                               ___ _____                   ________________          Technology Corp., 880  F.2d 1491,  1495 (1st Cir.  1989).   These          ________________          principles  are   in   overall  harmony   with   Rhode   Island's          jurisprudence.  See, e.g., Judd Realty, Inc. v. Tedesco, 400 A.2d                          ___  ____  _________________    _______          952, 955 (R.I. 1979);  Fryzel v. Domestic Credit Corp.,  385 A.2d                                 ______    _____________________          663, 666-67 (R.I. 1978);  O'Connor v. McKanna, 359 A.2d  350, 353                                    ________    _______          (R.I. 1976).                    Under Rhode Island law,  the determination of whether a          contract's  terms are ambiguous is  itself a question  of law for          the court.  See D.T.P.,  Inc. v. Red Bridge Properties, 576  A.2d                      ___ _____________    _____________________          1377,  1381 (R.I.  1990); Westinghouse  Broadcasting Co.  v. Dial                                    ______________________________     ____                                          9          Media, Inc., 410 A.2d 986, 991 (R.I. 1980); accord Fashion House,          ___________                                 ______ _____________          892 F.2d at 1083.  Generally, the Rhode Island Supreme Court will          deem  contract language  to  be  ambiguous  when  and  if  it  is          "reasonably    susceptible     of    different    constructions."          Westinghouse,  410 A.2d at 991;  accord Fryzel, 385  A.2d at 667.          ____________                     ______ ______          Conversely,  a contract which within the realm of reason can bear          only a single plausible interpretation can be so construed by the          court as a matter of law.  See O'Connor, 359 A.2d at 354.   Given                                     ___ ________          similar  parameters  of substantive  law,  we  have affirmed  the          granting of summary judgment where the words of a contract are so          clear  that  "reasonable  people  could  not  differ  over  their          meaning."  Boston  Five Cents Sav. Bank v.  Secretary of Dep't of                     ____________________________     _____________________          HUD, 768 F.2d 5, 8 (1st Cir. 1985); accord Singh, 977 F.2d at 21;          ___                                 ______ _____          Fowler v.  Boise  Cascade Corp.,  948  F.2d   49,  54  (1st  Cir.          ______     ____________________          1991).4                    Where  the   language  of  a  contract   is  clear  and          unambiguous,  the  Rhode  Island  Supreme   Court  has  generally          interpreted  the  parties' intent  based  solely  on the  written          words.5   See D.T.P., Inc., 576  A.2d at 1381; Dudzik  v. Leesona                    ___ ____________                     ______     _______                                        ____________________               4The  Rhode Island  Supreme Court  has elucidated  a similar          standard  in applying its own summary judgment rule.  See Cassidy                                                                ___ _______          v.  Springfield Life  Ins. Co.,  262 A.2d  378, 380  (R.I. 1970);              __________________________          O'Connor, 359 A.2d at 354.          ________               5At  least one Rhode Island case also looked to the parties'          circumstances at the time the contract was made both to ascertain          whether  a  term  was ambiguous  as  used  and  to determine  the          parties'  intent in  using an  otherwise unambiguous  term.   See                                                                        ___          Westinghouse, 410  A.2d  at 992.    We  need not  dwell  on  this          ____________          distinction,   however,   as   consideration  of   the   parties'          circumstances   in   this   case   would   only   strengthen  the          interpretation  of the  letter agreement  suggested by  its plain                                          10          Corp., 473 A.2d 762, 765 (R.I. 1984); Fireman's Fund Ins. Co.  v.          _____                                 _______________________          E.W. Burman, Inc.,  391 A.2d  99, 102 (R.I.  1978).   Unambiguous          _________________          language  is to be  accorded its plain and  natural meaning.  See                                                                        ___          Dudzik,  473 F.2d at 765; cf. Flanagan v. Kelly's System of N.E.,          ______                    ___ ________    _______________________          Inc., 286 A.2d 249,  251 (R.I. 1972) (construing Florida  law but          ____          indicating in dictum that  Rhode Island law is identical  in this          respect).                    We employ these tools in analyzing Newport's assertions          that  issues of fact, related to the interpretation of the letter          agreement, precluded the granting of summary judgment.                           A.  Acceptance of the Agreement.                           A.  Acceptance of the Agreement.                               ___________________________                    We first address Newport's  claim that there remains an          issue of disputed  material fact  as to whether,  by signing  and          returning  the November  1  letter in  the  manner requested,  it          intended  to accept the proposed terms and thereby form a binding          contract.  Newport argues that, in the letter, the Bank agreed to          release  Newport from  its loan  obligations only  upon Newport's          performance of three acts:   (1) returning the letter,  signed as          accepted, within two weeks; (2)  delivering a certified check for          $881,000  within  the  period  prescribed for  payment;  and  (3)          transmitting  written progress  reports  betweentimes.    Because          Newport performed  only one  of the three  acts    return of  the          letter     it envisions  an issue  of  fact regarding  whether it          intended  to accept  the  November 1  offer.   Although  we  give                                        ____________________          language.                                          11          appellant's counsel  high marks for ingenuity, we  do not believe          that the letter can be construed in so elastic a manner.                    Under  Rhode  Island law,  the  Bank,  as the  offeror,          controlled the offer and the terms of its  acceptance.  See B & D                                                                  ___ _____          Appraisals  v. Gaudette Mach. Movers, Inc., 733 F. Supp. 505, 508          __________     ___________________________          (D.R.I.  1990).   It is  a basic  tenet of  contract law  that an          offeror may, as a  condition of the offer's acceptance,  call for          an act,  a forbearance, or a  return promise from the  offeree in          exchange  for   the  offeror's  promise  or   performance.    See                                                                        ___          McLaughlin v. Stevens, 296 F. Supp.  610, 613 (D.R.I. 1969).   So          __________    _______          long as the offeror sets forth what is being sought in reasonably          certain  terms, he may bind the  offeree immediately by requiring          acceptance  in the form of  a return promise  rather than through          performance.  See B & D Appraisals, 733 F. Supp. at 508.                        ___ ________________                    Viewed  against  this   backdrop,  Newport's   position          appears totally  irreconcilable with the unambiguous  language of          the  Bank's November 1 letter.   After setting forth the terms of          the offer, the Bank states the  terms of its acceptance:  "If you          are in agreement  with the terms  and conditions detailed  above,          please so indicate by dating, executing and returning one copy of          this letter  for our files."   This language  is nose-on-the-face          plain:  the Bank  asked for a return promise    nothing more   as          the indicium of acceptance.                    Should  any doubt linger, we are quick to remark that a          court  is duty bound to construe contractual terms in the context          of  the contract  as a  whole.   See Woonsocket  Teachers' Guild,                                           ___ ____________________________                                          12          Local  951 v. School  Comm. of the  City of Woonsocket,  367 A.2d          __________    ________________________________________          203, 205 (R.I. 1976).   Here, the letter,  read in its  entirety,          dispels  any possible  claim of  ambiguity.   It states  that the          "offer  will  expire November  14, 1989,  and  we must  have your          signed acceptance  in our hands by  2:00 p.m. on that  date."  It          then  notes that, should Newport accept the offer, the Bank "must          also receive" the  progress reports and  the lump-sum payment  as          promised.                    Words are  not endlessly malleable.   They have meaning          and  content.   The  particular  combination  of words  that  the          parties  utilized   here,  taken  in  the   stated  sequence,  is          susceptible of  no reasonable interpretation other  than that the          parties  intended themselves  to be  fully bound  coincident with          Newport's return of the letter, endorsed "APPROVED AND ACCEPTED,"          by the date and time specified.  In contemplation of law, Newport          accepted  the  terms  of  the  offering  letter  by  signing  and          returning it.                         B.  The Effect of Newport's Consent.                         B.  The Effect of Newport's Consent.                             _______________________________                    Newport  also  claims that,  even  if  it accepted  the          offer, there  remains a  question of  fact regarding  whether, by          doing so, it intended to relinquish its right to sue the Bank for          failure  to resume  financing the  project pursuant  to  the oral          agreement.   This claim rests chiefly on an affidavit from Ronald          Kutrieb, one of Newport's principals, professing his belief that,          in signing the letter,  he was not surrendering  Newport's rights                                          13          under  the oral agreement.6  In our view, this initiative ignores          both unambiguous language and settled law.  We explain briefly.                    As we have previously  indicated, the plain language of          the November 1 letter is difficult to overcome.  To  be sure, the          letter  made   no  reference  to  the   earlier  oral  agreement.          Nevertheless,  the   Bank  did  not  mince  words.    The  letter          unequivocally  stated  that the  Bank had  "decided not  to allow          restarting of the  project."   These words are  definite.   Their          purport is not contradicted  by any other term in  the agreement.          The ordinary meaning of the quoted language, taken in context, is          susceptible  to no  other  reasonable interpretation  than as  an          expression  of the  parties'  mutual agreement  that construction          financing for the  project would  no longer be  furnished by  the          Bank.                    In such  clear-cut circumstances, the courts  below had          no principled choice but  to hold that Newport, by  accepting the          offer  in  the manner  indicated,  assented  to  the "no  further          financing" term.  See Fireman's  Fund, 391 A.2d at 102;  see also                            ___ _______________                    ___ ____          Theroux  v.  Bay Assocs.,  Inc., 339  A.2d  266, 268  (R.I. 1975)          _______      __________________          (explaining  that  a  court  will not  import  ambiguity  into  a          contract that unmistakably expresses the parties' intentions).                    Nor  did the  Kutrieb affidavit  create a  roadblock en          route to this result.   Contracts ordinarily depend on  objective                                        ____________________               6The Bank's letter transposed  two vowels in Kutrieb's name.          Moreover, one of Newport's  partners, Joseph J. Dabek, apparently          did not sign  the letter.  The parties do  not mention either the          misspelling   or   the   omission   and  we,   too,   deem   them          inconsequential.                                          14          indicia  of consent,  not on  a party's  subjective expectations.          When, as in this  instance, the parties' intent is  made manifest          by  the express terms of a written agreement, fairly construed, a          court  interpreting  the  agreement  should  not  look  to  "some          undisclosed  intent that  may have  existed in  the minds  of the          contracting parties but [should  be governed by] the intent  that          is  expressed  by  the   language  contained  in  the  contract."          Woonsocket Teachers' Guild, 367 A.2d at 205; accord Westinghouse,          __________________________                   ______ ____________          410 A.2d at 991  n.10; see also Smith v. Boyd,  553 A.2d 131, 133                                 ___ ____ _____    ____          (R.I. 1989)  (explaining that, under Rhode  Island law, objective          manifestations  of intent  govern contract  formation); Mathewson                                                                  _________          Corp.,  827 F.2d  at 853-54  (same; applying  Massachusetts law).          _____          Hence, the Kutrieb  affidavit raised no genuine issue of material          fact  sufficient to preclude the entry of summary judgment.  See,                                                                       ___          e.g.,  Singh, 977  F.2d  at 23  (affirming  summary judgment  for          ____   _____          lender  on the  basis,  inter  alia,  that  a  litigant  may  not                                  _____  ____          subrogate  the terms of  an unambiguous contract  to his supposed          contemplation  of  its  meaning)  (applying  Massachusetts  law);          Cassidy v. Springfield  Life Ins.  Co., 262 A.2d  378, 380  (R.I.          _______    ___________________________          1970)  (stating that,  where  a contract's  terms  are clear  and          unambiguous,  and there are no  questions of material  fact to be          resolved, the nisi prius court may grant summary judgment).                        ____ _____                    We see no way around this outcome.  The Bank's explicit          disclaimer  of any  intention  to  restart  the  project  in  the          subsequent  letter  agreement directly  contradicts  the supposed          oral  agreement (wherein the  Bank allegedly agreed  to pour more                                          15          money  into the  project  upon Newport's  fulfillment of  certain          conditions).    Given  this   direct  contradiction,  the  letter          agreement, being  later in  time, necessarily superseded  any and          all prior oral  agreements anent restarting construction.  It is,          after  all, settled  law  that,  if the  terms  of  a prior  oral          negotiation  are  dealt  with, or  covered  by,  a  later written          agreement between the parties on the  same general subject, then,          presumably,  the latter was intended to supersede the former, and          should be  so construed.  See Rogers  v. Zielinski, 170 A.2d 294,                                    ___ ______     _________          296  (R.I.  1961) (explaining  that,  if confronted  with  such a          situation, a court should  assume that "the writing was  meant to          represent all  of the transaction  on that  element") (quoting  9          Wigmore,  Evidence   2430(3) (3d  ed. 1940));   Philip Carey Mfg.                    ________                              _________________          Co. v. General Prods. Co., 151 A.2d 487, 492 (R.I. 1959) (holding          ___    __________________          that parties to a  novation waive any rights they  might have had          under the prior  agreement); Quinn  v. Bernat, 97  A.2d 273,  275                                       _____     ______          (R.I. 1953)  (stating that  a complete written  agreement becomes          the memorial of the parties'  intent, "merging or integrating all          prior oral agreements relating to the subject matter").                              C.  Lack of Consideration.                              C.  Lack of Consideration.                                  _____________________                    Newport  also asserts  that  the  letter  agreement  is          unenforceable  for  want  of   consideration.    Since  the  Bank          ultimately foreclosed and retained the right to pursue collection          of the  entire indebtedness,  this thesis runs,  Newport received          nothing of value in return for relinquishing its rights under the          oral agreement.  We disagree.                                          16                    The  November 1  agreement  was  supported by  valuable          consideration on both sides.   For its part, the Bank was willing          to  shave approximately  half  a million  dollars from  Newport's          outstanding debt.  Although Newport would not reap the benefit of          this considerable  savings  unless and  until  it made  a  timely          payment of $881,000, the  value of the opportunity, coupled  with          Newport's forbearance  for the 90-day waiting  period, was itself          substantial  and  furnished  valid  consideration  for  Newport's          return promise.  See, e.g., Philip Carey Mfg., 151 A.2d at 491-92                           ___  ____  _________________          (holding  that  mutual   agreement  to  forbear  from   asserting          previously acquired legal claims  is adequate consideration, as a          matter  of  law, to  support new  promises  made in  a novation);          Phenix  Nat'l Bank v. Raia, 28 A.2d  20, 22 (R.I. 1942) ("broadly          __________________    ____          speaking, an  agreement  to forbear  to enforce  rights under  an          original   obligation  is,   under   the  proper   circumstances,          recognized as good consideration for a new obligation"); see also                                                                   ___ ____          Higgins v. Mycroft, 92 A.2d 727, 729 (R.I. 1952).          _______    _______                    If practiced parties to commercial transactions bargain          for, and  receive, consideration that they  deem satisfactory and          that the law  regards as substantial, it  is not a  court's role,          absent fraud or other  exceptional circumstances, to evaluate the          relative  adequacy  of  the   consideration  or  to  reweigh  the          soundness of the parties'  judgments.  See Fall River  Nat'l Bank                                                 ___ ______________________          v. DeMarco, 249 A.2d 900, 903-04 (R.I. 1969).             _______          IV. CONCLUSION          IV. CONCLUSION                                          17                    We  need go  no  further.   In  the November  1  letter          agreement, the  parties unequivocally agreed that  the Bank would          not  resume financing  the ill-fated  construction project.   The          letter agreement  superseded,  and thus  extinguished, all  prior          negotiations on the same  general topic.  This means,  of course,          that  Newport's attempt  to  sue for  a  failure to  restart  the          project pursuant to the parties' earlier oral agreement cannot be          countenanced even if such  an agreement existed at one  moment in          time.          Affirmed.          Affirmed.          ________                                          18                                       APPENDIX                                                 November 1, 1989          Newport Plaza Associates, L.P.          c/o Capital Growth Companies          Mr. Ronald E. Kutreib          221 Third Street          Newport, Rhode Island 02840          Gentlemen:          This is to confirm our meeting of October 27, 1989.          Durfee Attleboro Bank has received and reviewed your proposal          dated October 13, 1989, to restart the project.  As you know,          your $2,200,000.00 note dated February 8, 1988, remains in          default, as set forth in our letter to you of April 26, 1989.          After our complete review of this proposal, we have decided          not to allow restarting of the project.          However, without waiving any of our rights, we will allow          Newport Plaza Associates, L.P. until February 1, 1990, to pay          the Bank $881,000.00, and if payment is received by said          date, said  sum will be  accepted as full  payment of the  Bank's          $2,200,000.00 note  dated February  8, 1988.   Therefore,  if you          accept this offer you must deliver to us no later than 2:00          p.m.,  February 1,  1990,  a certified  check  payable to  Durfee          Attleboro Bank in the amount of $881,000.00.          If  you are in agreement  with the terms  and conditions detailed          above, please so indicate by dating, executing and returning          one copy  of this letter for  our files.  This  offer will expire          November 14, 1989, and we must have your signed acceptance          in our hands by 2:00 p.m. on that date.  If you accept this          offer,  we must  also  receive detailed  weekly written  progress          reports on the status of the project and your efforts to          obtain the $881,000.00, which reports will be due every Thurs-          day at 3:00 p.m. via fax machine (508 679-8361).          If you fail to strictly meet all the terms and conditions as          set  forth above,  we may immediately  pursue any and  all of our          rights and our remedies to enforce our rights, including, but                                          19          Newport Plaza Associates, L.P.  -2-       November 1, 1989          not limited  to  foreclosure.   Time  is of  the essence  in  all          respects.                                            Sincerely,                                            Durfee Attleboro Bank                                            _____________________________                                            Anthony J. Riccitelli                                            Assistant Vice President          APPROVED AND ACCEPTED:          NEWPORT PLAZA ASSOCIATES, L.P.          By:____________________________      ___________________________             Ronald E. Kutreib, partner        Date          By:____________________________      ___________________________             Joseph J. Dabek, partner          Date          By:____________________________      ____________________________             James J. Beaulieu, partner        Date             ____________________________      ____________________________             Ronald E. Kutreib, guarantor      Date             ____________________________      ____________________________             Joseph J. Dabek, guarantor        Date             ____________________________      ____________________________             James J. Beaulieu, guarantor      Date          CERTIFIED MAIL          RETURN RECEIPT REQUESTED                                          20
