Bourdeau Bros., Inc. v. Boissonneault Family Farm, Inc.

Summary

The Vermont Supreme Court held that whether an attorney’s-fees provision in invoices materially alters a sales contract between merchants under 9A V.S.A. § 2-207 is a fact-specific question requiring consideration of the circumstances of the transaction. The court remanded for findings on whether the grain supplier was entitled to attorney’s fees, while affirming the damages calculation, dismissal of the farm’s water-use counterclaim, and personal liability of Jay Boissonneault.

Holdings

1. The parties were merchants for purposes of the UCC, and § 2-207(2)(b) applied to the agreement for the purchase of grain.
2. Whether an additional term, including an attorney's-fee provision, materially alters a sales contract between merchants under § 2-207(2)(b) is a question of fact determined from the circumstances of the particular case.
3. Because consent to an additional term is presumed when no timely objection is made, the party opposing inclusion bears the burden of demonstrating surprise or hardship sufficient to establish a material alteration.
4. The damages calculation was proper because the amount owed for 2014 grain had been paid in January 2015 and was not included in the award.
5. Defendants were not legally entitled to damages for water removed from the pond because their lease did not give them exclusive control over the water and the landowner had authorized plaintiff's use.
6. The court would not disturb the finding of Jay Boissonneault's personal liability because he invited the alleged error by asserting below that he, rather than the corporation, was responsible for the grain orders.

Questions Presented

1. Whether an attorney's-fee provision included in invoices became part of the parties' contract under 9A V.S.A. § 2-207.
2. Whether the attorney's-fee provision materially altered the parties' sales contract as a matter of law or whether material alteration presented a factual question.
3. Whether the trial court improperly calculated damages by including amounts relating to grain purchased in 2014.
4. Whether defendants were entitled to recover damages for water removed by plaintiff from a pond on leased farmland.
5. Whether Jay Boissonneault was personally liable for the company's grain debt.

Disposition

reversed_and_remanded