Borden, Inc. v. Advent Ink Company

Borden, Inc. (plaintiff) sold an ink ingredient to Advent Ink Company (Advent) (defendant) multiple times. Advent used the ingredient in the manufacturing of water-based ink, which it sold to R.R. Donnelley & Sons Company (Donnelley). In 1992, after Advent did not pay for a shipment of the ingredient, Borden sued to recover the unpaid price. Advent alleged that it had rejected the shipment based on a defect in the ink ingredient in a previous shipment from Borden. Advent alleged that because of the defect in the previous shipment, the ingredient caused the ink that Advent manufactured to clog the printing press used by Donnelley, and that Donnelley stopped buying ink from Advent as a result. Advent counterclaimed on the theory that Borden had breached the warranties of merchantability and fitness for a particular purpose. Borden included disclaimers of the warranties of merchantability and fitness for a particular purpose on its invoices and the drums of the ingredients that it sent to Advent. On the invoices, the disclaimer was on the back of the form, with no indication on the front of the form that there was a disclaimer of warranties on the back, and the entire disclaimer paragraph was in a similar font to the rest of the conditions listed on the back. The disclaimers written on the drums were more obvious because they were on the front of the drums and had less text surrounding them, but they were in a tiny font, and there were larger, more noteworthy text labels directly above them on the drums. Borden moved for summary judgment to dismiss Advent’s counterclaim, and the trial court granted that motion, finding that the disclaimers were sufficiently conspicuous.