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Wheco Corp. v. Ross Bros. & Co.5/24/2005
A second agreement for the same work must be supported by additional consideration. The agreement here (for crane services) was memorialized by a purchase order. But after the crane and operator arrived at the job site, the crane company presented the buyer's foreman with a preprinted form ostensibly to document hours. But the reverse side of the form included additional terms and conditions. The foreman signed the form. We conclude that any additional terms and conditions are unsupported by additional consideration and are therefore unenforceable. And we affirm the trial court's dismissal of the crane company's claim for damage to the crane.
FACTS
This litigation follows an agreement for crane services between Bethlehem Construction, Inc. and Ross Crane & Rigging, Inc. Bethlehem was the general contractor for a building in Odell, Oregon. The job involved hoisting and positioning of tilt-up panels; this required a crane.
Bethlehem contacted Ross in December 2000. A Ross employee visited the site. Ross offered to perform the crane services, complete with Ross employees as crane operator and crane oiler at a specified price. Bethlehem accepted the offer on December 28. Bethlehem issued and sent Ross a purchase order confirming the deal. Ross delivered the crane, crane operator, and crane oiler to the job site on January 16, 2001.
Ross paid the wages, employment taxes, and workers' compensation insurance for its operator and oiler. Ross was responsible for on-site fueling and repair of the crane. The operator and oiler had sole control over the crane and the keys to the crane. And Ross retained control over their hiring and firing.
On January 17, the second day of operations, Ross's crane operator presented Bethlehem's foreman with the first of four forms titled Standard Short Term Crane Rental Agreement. The forms recorded hours worked and duties performed, along with the amounts owed. The invoice-like pieces of paper included terms on the back. Ross did not provide copies of the forms to Bethlehem until the end of the job. One of the panels came loose, fell on the crane, and damaged it on January 24, 2001.
A procedurally complex series of suits and countersuits ensued involving Ross, a repair company, and insurance companies. Ross, the defendant in the main action, filed a third party complaint against Bethlehem. At issue here is Ross's allegation that Bethlehem is liable to Ross for damage to the crane under the terms of the forms signed by Bethlehem's foreman.
Bethlehem moved for summary judgment. It contended the facts were undisputed, the terms were boilerplate, and the terms were unenforceable because they modified the pre-existing oral contract without consideration. The court agreed and granted summary judgment.
Ross nonetheless continued to pursue its claims against Bethlehem. It argued that it had other theories independent of the terms of its time sheet. Ross did not have other independent theories. Bethlehem asked the court to clarify the order to make clear that all of Ross's claims against Bethlehem were dismissed. The court did so.
Ross appealed. But after Ross filed its notice of appeal, other activity continued in the superior court, and the appellate pleadings were amended numerous times. Finally, our commissioner remanded for further proceedings and entry of findings and a definite appealable order.
Upon remand, the court certified a final judgment in favor of Bethlehem Construction based on the court's prior orders. The court unequivocally dismissed all of Ross's claims against Bethlehem. The court certified that unadjudicated claims remaining betwee
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