Middletown Concrete Products, Inc. v. Black Clawson Co.

OPINION

On October 11, 1990, Middletown Concrete Products, Inc. (“MCP”) filed a complaint against Black Clawson Co. (“Black Clawson”) and Hydrotile Machinery Company (“Hydrotile”) over the sale of machinery for which the contract price exceeded $2,000,000. Before the Court now in this diversity action is MCP’s motion for summary judgment on counts I and II and defendants’ motion for summary judgment on all counts. The parties agree that the contract claims are governed by Iowa law and the tort claims are governed by Delaware law. This Court has jurisdiction under 28 U.S.C. § 1332.

*1137 For the reasons that follow, MCP’s motion for summary judgment will be denied; Hydrotile’s motion for summary judgment will also be denied.

I.

In 1988, Kenneth Kershaw (“Kershaw”), Joseph J. Corrado (“Corrado”), Stephen A. Cole (“Cole”), Frank Corrado, Leonard Ia-cono (“Iacono”), Arnold Boyer (“Boyer”) and Yerino Pettinaro, all of whom are Delaware contractors, formed and became shareholders in Middletown Concrete Products, Inc., a precast concrete manufacturing plant in Middletown Delaware. (App. to PL’s Opening Br. (Docket Item 26) [hereinafter “Dkt.”] at A-189-90). Each of the founders is an experienced businessman. Boyer invested approximately $500,000 (App. to Def.’s Opening Br., Dkt. 29 at A-107), and subsequent investments by Ker-shaw and Corrado have brought their investments in MCP to approximately $1.3 million each. (Dkt. 29 at A-173-4; A-133-34). MCP’s primary product was to be concrete pipe.

In March of 1989, MCP entered into a series of contracts (the “Contracts”) with Hydrotile, a wholly owned division of Black Clawson, under which defendants agreed to sell to MCP a machinery system to manufacture concrete pipe (the “System”). The System consisted mainly of two parts: (1) the Multipak/Neptune machine (the “Neptune”) and the Rekers Off-bearing System (the “Rekers”). On August 8, 1989, MCP entered into an additional contract with Hy-drotile for the purchase of equipment for the production of elliptical concrete pipe.

Apparently, the parties’ relationship began when David Mack (“Mack”), Hydro-tile’s regional sales manager, visited Corra-do to discuss the generalities of the pipe manufacturing business as well as Hydro-tile’s products. (Pl.’s Opening Br., Dkt. 25 at 5; Dkt. 26 at A-200-202). In June, 1988, Darryl Haar (“Haar”), vice president and marketing manager for Hydrotile, and Mack visited Corrado again and showed YCR tapes of various pipe making machines as well as of the Rekers. (Dkt. 26 at A-131).

At one of the meetings in 1988, Mack gave Corrado a promotional brochure for the Neptune. Part of this brochure contained a list of rates at which the Neptune could produce various sizes of pipe. (Dkt. 26 at A-17; A-202-203).

During the summer of 1988, representatives of MCP and Hydrotile together visited various pipe manufacturing plants in the United States and Canada. (Dkt. 26 at A-65-66; A-80; A-175). MCP’s representatives observed the operation of machinery produced by a variety of machinery manufacturers and had an opportunity to talk to the various pipe producers who were using this machinery. (Dkt. 26 at A-67; A-80-83; A-132). During one of these visits, MCP learned that in Florida a Saturn machine (Hydrotile’s- predecessor to the Neptune) had experienced difficulties in starting up. When asked about the Florida plant, Boyer testified in deposition: “[I]n a nine-month period down there they had never got that thing up to producing anywhere near what they had expected.” (Dkt. 29 at A-115).

During the July, 1988, tour, MCP viewed certain features of other Hydrotile equipment, some of which belonged to predecessors of the Neptune machine (Dkt. 29 at A-164-65; A-166), but the Neptune itself was not yet in production in any plant at that time. (Dkt. 29 at A-125; A-157). Consistent with its policy, Hydrotile did not conduct production testing for the Neptune. (Dkt. 29 at A-147-48).

At the time of the tour, MCP was considering purchasing concrete pipe manufacturing machinery from the Hawkeye Machinery Company (“Hawkeye”) as well as from Hydrotile. (Dkt. 26 at A-83). MCP also considered equipment available from other’ suppliers. (Dkt. 26 at A-80-83; A-204).

In August of 1988, Hydrotile and MCP intensified negotiations for the purchase of a highly automated system. On August 11 and 12, 1988, Mack and Haar met with MCP to go over Hydrotile’s quote for the System. (Dkt. 26 at A-83). Although experienced businessmen, none of the shareholders of MCP had ever purchased pipe making machinery before. (Dkt. 26 at A- *1138 73). Among other things, Haar and Mack discussed proposed plant layouts. (Dkt. 26 at A-133). The parties also discussed pipe quality, production rates, and changeover time. (Dkt. 26 at A-180-181).

During this meeting Corrado and other shareholders of MCP shared with Haar concerns they wanted satisfied before purchasing the System from Hydrotile. (Dkt. 26 at A-84-85). At the time of the meeting MCP was concerned about the Neptune’s performance as Neptune had not developed a track record and as another company was experiencing problems with the Neptune’s predecessor, the Saturn. (Dkt. 26 at A-84-85). Accordingly, MCP requested that Hy-drotile guarantee production rates. (Dkt. 26 A-90-98). Indeed, MCP was “screaming” and “shouting” about the production guarantee’s importance. (Dkt. 29 at A-123A). MCP also requested that Hydrotile áccept different payment terms than those proposed by Hydrotile, and agree to buy back the System if it did not perform satisfactorily. (Dkt. 26 at A-84-87; A-134; A-213-14). After initially dismissing MCP’s requests as “out of the question,” Haar agreed to discuss the requests with his superiors. (Dkt. 26 at A-135-36).

On August 24, 1988, Haar returned to MCP with David Fell (“Fell”), corporate operations manager of Black Clawson. Corrado, Cole and Boyer attended this meeting on behalf of MCP. (Dkt. 26 at A-137). Haar and Fell told MCP that Hydro-tile and Black Clawson would not agree to a buy back provision. (Dkt. 26 at A-216-17). MCP never successfully negotiated a buy back stipulation. (Dkt. 26 at A-74-75; A-94).

On August 24, 1988, Haar also told MCP that Hydrotile could not guarantee the production levels in the promotional brochure because actual production levels could depend on a number of factors. (Dkt. 26 at A-88-90; A-218-20). In response to this MCP told Haar to advise MCP of rates Hydrotile would guarantee. (Dkt. 26 at A-90-98; A-219). Specifically, Boyer told Haar and Fell that if they were unwilling to guarantee the rates in their promotion literature, they should pick a number they could live with. (Dkt. 26 at A-69-72; A-76-77). MCP never insisted that Hydrotile guarantee the rates reflected by its advertising. (Dkt. 26 at A-90-96; A-140).

During the August 24, 1988, meeting, Haar also stated that changeovers could be made in about an hour. (Dkt. 26 at A-139). Both Haar and Ronald Schriever, Hydro-tile’s National Sales Manager, made this representation on several occasions. (Dkt. 26 at A-8-10; A-26-27; A-153-55; A-224). Plaintiff urges that such representations were insupportable because Mack, during his deposition, testified that Hydrotile never attempted to change over any Neptune prior to marketing the machine. (Dkt. 26 at A-236). Also, plaintiffs note Hydrotile’s theoretical production rates for the Neptune were calculated partially by extrapolating theoretical production rates of the Saturn. MCP actually experienced changeover times in excess of four to eight hours. (Dkt. 26 at A-236; A-46-48; A-149-52).

On August 30, 1988, Haar, Mack and William Mitchell 1 (“Mitchell”) met with Corrado, Boyer and Iacono. (Dkt. 26 at A-34; A-143). The parties discussed production rates. Around the time of the meeting, Haar presented MCP with Hydrotile’s definition of “Acceptable Performance” of the System. (Dkt. 26 A-2-7; A-90-97). The definition was in the form of a letter (the “Acceptable Performance Letter”) authored by Mr. Haar in response to MCP’s demand on August 24. (Dkt. 26 at A-2-7; A-222; A-242). The production rate listed was less than that contained in Hydrotile’s literature.

At the time Haar prepared the Acceptable Performance Letter, no Neptune machine was operating, and the only other machine had been sold to American Concrete Products in Milwaukee. Haar prepared the letter based on prior meetings with a number of Hydrotile engineers and technicians, who developed estimates based on prior generations of Hydrotile machinery. (Dkt. 29 at A-151-54). Hydrotile did *1139 not share with MCP the underlying theoretical basis of its estimates.

At the August 80, 1988, meeting, MCP again requested that Hydrotile agree to a “buy-back” or some other type of production guaranty tied to the estimated rates set forth in the August 29 letter. Hydro-tile again refused to agree to such a provision. MCP decided to postpone negotiations until it could visit American Concrete where the Neptune was installed and could be observed first-hand. (Dkt. 29 at A-158-61). Corrado and other representatives of MCP traveled to Milwaukee to observe the machine. (Dkt. 29 at A-191). Because the machine was not producing concrete at that time, the MCP representatives could only observe the Neptune “dry cycle” through its phases of operation. (Dkt. 29 at A-191; A-136-37).

In early March of 1989, Kershaw, Boyer and Iacono again visited the American Concrete plant. (Dkt. 29 at A-186). This time the Neptune was producing pipe and MCP representatives had the opportunity to observe the machine in actual production. (Dkt. 29 at A-175-76). . During both the November and March visits, MCP representatives discussed the operation of the machine with American’s management. (Dkt. 29 at A-137; A-167; A-171-72). At their depositions, Boyer, Iacono and Corrado each testified that MCP was not able to get an accurate figure for the production rates from the American Neptune because American’s “batch” plant was located too far away from the Neptune. In other words, the supply of concrete mix to the machine was not rapid enough to allow the Neptune to produce at its full capacity. (Dkt. 29 at A-116-18; A-172; A-137-38).

Plaintiff maintains that although Hydro-tile would not agree to make payment contingent upon the System achieving Acceptable Performance, Haar told MCP that such performance levels would be guaranteed by Hydrotile. (Dkt. 26 at A-90-100; A-103-05; A-141-42). Plaintiff further maintains that it informed Hydrotile representatives that it was relying on these guaranteed Acceptable Performance numbers in making its decision to purchase the System. (Dkt. 26 at A-186-88; A-223). 2

On March 21, 1989, a meeting was held in Wilmington, Delaware, during which the final negotiations of the Contracts took place. Cole, Corrado and Kershaw were present on behalf of MCP. (Dkt. 26 at A-225). Haar and Mack attended on behalf of Hydrotile. (Dkt. 26 at A-145-46). Cole eventually signed the quotations brought by Haar and Mack. (Dkt. 26 at A-146).

Printed near the top of the first page of each contract was the following:

We [Hydrotile] hereby offer for a limited period of 30 days following the date hereof the items described below and/or in the specifications, if any consisting of [ ] pages attached hereto. This offer is subject to the terms and conditions contained on this and the other side hereof and in said specifications, if any, and to no others whatsoever.

(Dkt. 29 at A-17, A-20, A-22). On the reverse side of these quotations is boilerplate language denoted as the “Selling Conditions” in which Hydrotile expressly warranted:

that the equipment manufactured by it shall be free from defects in material and workmanship under normal use and service for a period of 90 days from delivery. Parts claimed and proved to Seller’s satisfaction to be defective, shall be replaced or repaired without charge, FOB Nashua, Iowa, provided that immediate notification in writing is given to the Seller. Equipment manufactured by others than the Seller is sold exclusively under such warranty as the manufacturer may give to the Seller and to the extent enforceable by the Seller. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES (WHETHER WRITTEN, ORAL OR IMPLIED) INCLUD-

*1140 ING THE WARRANTY OF MERCHANTABILITY IN OTHER RESPECTS THAN EXPRESSLY SET FORTH ABOVE AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. Liability of Seller under this warranty is limited to the repair or replacement of the defective part, all damage claims of whatever nature, including without limitation Buyer’s labor costs, being excluded.

(Dkt. 29 at A-21, A-23).

The System was delivered piecemeal beginning in October, 1989, and into January, 1990. By March 21, 1990, the System was installed and ready to manufacture pipe. (Dkt. 26 at A-23-24).

MCP maintains that Hydrotile never repaired or replaced all of the defective parts. Plaintiff maintains that on several occasions MCP tried to coax Hydrotile to repair or replace defects in the system. On April 30, 1990, Corrado wrote Carl Landegger (“Landegger”), Chairman of Black Claw-son, to advise of Hydrotile’s failure to deliver and install a System which would adequately perform as promised by Hydrotile. (Dkt. 26 at A-23-24). In response, Landeg-ger assured MCP that Black Clawson stood “one hundred percent” behind the machinery it had sold to MCP. (Dkt. 26 at A-25; A-239-40).

On April 23, 1990, Hinch, the General Manager of MCP, wrote to Knight, the President of Hydrotile, explaining that MCP had been in “constant communication with Hydrotile’s Customer Service and Sales Personnel,” (Dkt. 26 at A-32), and that therefore, everyone was aware of the problems MCP was experiencing. Hinch also wrote “To date our Reker’s system is not complete. RE: pallet cleaning and pallet slide table. When the remaining equipment/parts are installed and our equipment will function as was promised, we will be glad to pay all balances due.” (Dkt. 26 at A-32).

In May, 1990, Hydrotile sent Fred Schultz, one of its mechanical specialists, to investigate MCP’s complaints. (Dkt. 26 at A-243). Schultz acknowledged that part of the machinery had been prematurely damaged, possibly because it had been improperly fabricated. (Dkt. 26 at A-28-31). Mr. Hinch testified that it was unlikely this damage was due to abuse. (Dkt. 26 at A-163). Schultz also identified a number of other defects with the machine which needed to be repaired or replaced, including the pallet centering mechanisms, pallet centering bars, a dysfunctional air compressor in the Rekers robot, and the top table siper bracket for the 24" set up. (Dkt. 26 at A-28-31; A-161-73). Plaintiff maintains that some of these defects were not timely corrected and some were never corrected by defendants. (Dkt. 26 at A-33; A-169-73).

On May 22-23, 1990, MCP invited Mr. Ronald Schriever (“Schriever”), who had taken Haar’s position as national sales manager, to the Middletown plant to evaluate ongoing problems. Schriever toured the plant with Corrado, Cole and Don Bailey, 3 and gave MCP his evaluation. (Dkt. 26 at A-226; A-244-45). Schriever explained that some of the problems, including improper maintenance and inadequately trained personnel, were MCP’s problems and not Hydro tile’s problems. (Dkt. 26 at A-227-31). Schriever also acknowledged that several of the parts were defective and needed to be repaired or replaced. (Dkt. 26 at A-ll-13; A-39-51; A-191-98). Plaintiff maintains that on many occasions MCP was forced to repair defects with the System which should have been repaired by Hydrotile. (Dkt. 26 at A-19-20; A-79).

In July, 1990, Haar, Mack and Schriever met with Corrado and Cole to go over continuing problems. (Dkt. 26 at A-246). Plaintiffs maintain that as of July 13,1990, Hydrotile had not yet resolved all of the defects with the System outlined by Schultz in May or by Schriever in his June 1, 1990, letter. (Dkt. 234-35).

In July, 1990, Kevin Fee (“Fee”), an engineer who was Director of Technical Services for Hydrotile, initiated a program at *1141 MCP designed to investigate aspects of the operating procedure in order to improve the System’s operation. (Dkt. 26 at A-115). In a July 19, 1990, letter Fee, after visiting the plant and discussing his plans with Dennis Hinch, agreed that the System was still not producing pipe of acceptable quantity or quality. (Dkt. 26 at A-14-16).

Subsequently, Hydrotile and MCP embarked on a joint effort to attempt to get the System to perform acceptably. (Dkt. 26 at A-106-10). The initial aspect of this program included sending MCP’s personnel to a “school” held by Hydrotile. (Dkt. 26 at A-118). At “school” the parties discussed, the operating procedure of the Neptune machine. After this school, personnel from Hydrotile were to accompany MCP to the Middletown plant and stay for 90 days, or until defects in the System had been adequately repaired or replaced by Hydro-tile working jointly with MCP. (Dkt. 25 at 14). Plaintiff contends although several Hydrotile employees did return to MCP, they did not stay more than two weeks and many of the defects in the System were never repaired or replaced. (Dkt. 26 at A-118-19).

In September, 1990, Bailey gave Sehriever a list of more than 25 items which still needed to be fixed. (Dkt. 26 at A-19-20; A-lll-13; A-123-25; A-247). Plaintiff maintains Hydrotile never repaired or replaced all defective parts on this list. (Dkt. 26 at A-125-26).

II.

Summary judgment shall be rendered “if 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).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon' motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case; and on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The standard is not whether there is literally no evidence for the non-movant, nor is it enough for the non-movant to provide a scintilla of evidence supporting its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Where the appropriate level of showing is not made, “[t]he moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. “Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party’s case.” Lujan v. National Wildlife Federation, 497 U.S. 871, —, 110 S.Ct. 3177, 3187, 111 L.Ed.2d 695 (1990).

A court should grant a summary judgment motion when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. From recent Supreme Court cases “it is clear enough ... that at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the mattér but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. at 2511.

As stated by this Court,

The filing of cross-motions for summary judgment by the parties does not empower the Court to decide genuine issues of material fact. Tomalewski v. State Farm Life Ins. Co., 494 F.2d 882, 884-85 (3d Cir.1974); Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968). Nor is the Court required to grant sum *1142 mary judgment in favor of one party or the other simply because cross-motions have been filed; genuine issues of material fact may still exist. Tomalewski, 494 F.2d at 884-85; Rains, 402.F.2d at 245; Krupa v. New Castle County, 732 F.Supp. 497, 505 (D.Del.1990).

Anthes v. Transworld Systems, Inc., 765 F.Supp. 162, 165 (D.Del.1991).

III.

Hydrotile first urges MCP’s breach of contract and warranty causes of action fail as a matter of law because the contracts exclude the terms on which these claims are based. Count I alleges that Hydrotile breached its contract with MCP because the pipe-making equipment that it delivered pursuant to the Round Pipe Contract produces pipe at the rate of 34 pipes per hour rather than 54 pipes per hour that had allegedly been represented. Count II alleges that Hydrotile “expressly” warranted that it would repair or replace that equipment which did not meet the performance standards contained in the unsigned August 29, 1988, letter, and that Hydrotile breached this warranty. Count IV alleges that the Elliptical Pipe Contract required the equipment to make two elliptical pipes at a time and that this provision was breached. Hydrotile argues that because the written contracts each contain a written integration clause, and because it is undisputed the written contracts do not warrant or guarantee any particular production rate nor specify that the elliptical equipment could be used two at a time, settled principles governing parol evidence require judgment in Hydrotile’s favor.

The parol evidence rule has been codified in Iowa’s Uniform Commercial Code (“UCC”). 4 Iowa Code Annotated section 554.2202 states:

554.2202 Final written expression — par-ol or extrinsic evidence Terms with respect to which the confirmatory memoranda of the partes agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented

a. by course of dealing or usage of trade (Section 554.1205) or by course of performance (Section 554.2208); and

b. by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

Iowa Code Ann. § 554.2202 (West 1991).

In determining the applicability of the parol evidence rule, a court must first determine whether there is an integrated 5 agreement. See Restatement (Second) of Contracts § 209(2) at 115 (1981). If a court concludes there is no integration, the parol evidence rule does not apply and evidence of contradictory prior or contemporaneous agreements may be introduced. “An integrated agreement is á writing or writings constituting a final expression of one or more terms of an agreement.” Id. at § 209(1). Professor Farnsworth has noted, “[n]o particular form is required for an integrated agreement, and the writing need not be signed by either party.” E.'Allan Farnsworth, Contracts § 7.3, at 471 (2nd ed. 1990) (footnotes omitted) [hereinafter *1143 Farnsworth], “Whether a writing has been adopted as an integrated agreement is a question of fact to be determined in accordance with all relevant evidence.” Restatement (Second) of Contracts § 209 cmt. c. 6 Case law explaining how courts actually determine the intent of the parties is scant. Often courts simply assume a contract is integrated and move on to determine whether that contract is merely final as to the terms it contains or is the complete and exclusive final agreement of the parties.

Although nothing in the UCC indicates what a court is to consider, there are certain general principles that should guide a court in determining whether the parties, intended a writing to be a final expression of their agreement. Professor Farns-worth, for instance, has observed that “the intention of the parties is determined from all the circumstances, including their language and other conduct, just as intention is determined for any other purpose." Farnsworth, § 7.3 at 472. Although the writing itself is useful in determining intent, Professor Corbin cautions, “No written document is sufficient, standing alone, to determine [if a writing is an integration], ... however long and detailed it may be, however formal, and however many may be the seals and signatures and assertions.” 3 Arthur Linton Corbin Corbin on Contracts § 573 at 360 (1960) [hereinafter Cor-bin ]. The Court of Appeals for the Ninth Circuit has emphasized: “In deciding whether a writing is final the most important issue is the intent of the parties.” Sierra Diesel Injection Service v. Burroughs Corp., 890 F.2d 108, 112 (9th Cir. 1989) (interpreting Nevada’s codification of 2-202 which is substantially similar to Iowa’s codification of the same).

In this case defendants have identified three documents which they maintain constitute the “contracts.” The first writing, # 149, involves the sale of an Hydro-tile/Rekers Automatic Offbearing System and Cured Pipe Handling System. The second writing, # 148, involves the sale of kiln cars, a car moving system, and a hydraulic pumping unit. The third writing, # 146, involves the sale of a Hydrotile Multi-pak/Neptune Concrete Pipe Machine, form mounted cage positioner controls, equipment required to run round pipe, and equipment to produce 15" through 42" R-4 Forsheda 138 joint pipe. Defendants maintain the three writings constitute the complete and exclusive final expression of the parties’ agreement. Plaintiff, on the other hand, disputes that the three writings were ever integrated in the first place. Plaintiff argues that when presented with documents # 146, # 148, and # 149, it refused to sign them unless defendants agreed that the 1988 Acceptable Performance Letter was part of the contracts. Plaintiff further argues that only after it received assurances that the documents would be part of the contracts between the parties, did it sign the documents # 146, # 148, and # 149. 7 Therefore, plaintiff urges neither party intended documents # 146, # 148, and # 149 to be the final expression of their agreement; rather, the final agreement between the parties was meant to include documents # 146, # 148, # 149, and the Acceptable Performance Letter. 8

The facts, however, ultimately belie plaintiff’s position. First, plaintiff’s principals are sophisticated businessmen who ne *1144 gotiated with defendants for several months. Second, the relative bargaining strengths of the parties were commensurate. Third, each of the writings is signed by an MCP representative and dated March 21, 1989. Fourth, on the reverse side of the contracts is a pre-printed limitation of warranties which reads:

THE FOREGOING WARRANTY [that the equipment will be free from defects in material and workmanship under normal use and service for a period of 90 days from delivery] IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES (WHETHER WRITTEN, ORAL OR IMPLIED) INCLUDING THE WARRANTY OF MERCHANTABILITY IN OTHER RESPECTS THAN EXPRESSLY SET FORTH ABOVE AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

(Dkt. 29 at A-23). Fifth, also on the reverse side of each writing is the following pre-printed merger clause:

There are no rights, warranties or conditions, express or implied, statutory or otherwise, other than those herein contained. This agreement between Buyer and Seller can be modified or rescinded only by a writing signed by both parties. No waiver of any provision of this agreement shall be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted and unless expressly made generally applicable shall only apply to the specific case for which the waiver is given.

(Dkt. 26 at A-23). On the date the Contracts were signed, plaintiff sent Hydrotile a letter reading as follows:

Please accept our order per you’re Sales contracts 146, 148, 149 this date.

We reserve the right to have the sales contracts read and cause remedy to language before the close of day Thursday, March 23, 1989.

(Dkt. 29 at A-16). The letter was acknowledged through signature by Haar, a Hydro-tile representative. Above Haar’s signature is the caption: “Accepted.” Therefore, the contracts consisted of the three documents plus any modifications made during the three-day period of March 21, 1989, to March 23, 1989. 9 Sixth, the entire set of documents were reviewed by plaintiffs’ counsel. 10 Accordingly, the only reasonable inference to be drawn from the facts is that the parties intended the three writings and any modifications made between March 21 and March 23, 1989, to constitute the final expression of the parties as to those terms contained therein.

Having determined that writings # 146, # 148, and # 149 are final expressions, the parol evidence rule has some application. The next question the Court must address is whether the writings constitute merely the final expression of the parties’ agreement as to the terms contained in each writing, or the complete and exclusive final expression of the parties’ agreement. As explained by Professor Murray:

(1) if the parties intend their written expression of agreement to be merely final, the terms of that final agreement may not be contradicted by any prior or contemporaneous oral agreement. (2) Such terms in a final writing may, however, be explained or supplemented by evidence of consistent additional terms or by evidence of course of dealing, usage of trade or course of performance. (3) If the parties intended their writing to be not merely final but also a complete and exclusive statement of the terms of their agreement, evidence of consistent additional terms is excluded, but even with respect to such a complete and exclusive expression of agreement, evidence of trade usage, course of dealing, and course of performance is admissible. *1145 There is, therefore, no presumption that the writing is the complete and exclusive expression of the parties’ agreement. Rather, the opposite is assumed, i.e., the writing will not be viewed as complete and exclusive unless the court finds that the parties intended it to be complete and exclusive.

John Edward Murray, Jr., Murray on Contracts § 84, at 394-95 (3d ed. 1990) (emphasis in original) (footnotes omitted). 11

The test for determining whether the writing is complete and exclusive is found in Comment 3 to section 554.2202 of the Iowa Code which reads in pertinent part: “If the additional terms are such that, if agreed upon, they would certainly have been included in the document in the view of the court, then evidence of their alleged making must be kept from the trier of fact.” Iowa Code Ann. § 554.2202 cmt. 3 (emphasis added). 12

Defendants argue the presence of the three separate merger clauses in each of the three writings should, as a matter of law, determine that the writings were the complete and exclusive agreement between the parties. Defendants cite Montgomery Properties Corp. v. Economy Forms Corp., 305 N.W.2d 470 (Iowa 1981), for the proposition that because each of the contracts contains an integration clause, the Court should conclude that the parties intended the written contract “as the final and complete expression of the agreement.” (Dkt. 28 at 16). In Montgomery Properties, the Supreme Court of Iowa held that in an integrated agreement involving a handcrafted integration clause in a contract between sophisticated parties of equal bargaining strength, the existence of the integration clause is controlling on the issue of whether the written contract is the whole integrated agreement, so as to exclude parol evidence on the issue. Id. at 476. In 1986, the Iowa Supreme Court made clear, however, that Montgomery *1146 was “expressly limited to ‘handcrafted’ contracts between parties of equal bargaining strength.” Wolfe v. Graether, 389 N.W.2d 643, 654 (Iowa 1986). Because the case presently before the Court involves a pre-printed integration clause, Montgomery is not directly on point. Moreover, the fact that there are three separate integration clauses on each of the writings, # 146, # 148, and # 149, each of which recites, “[t]his agreement contains the entire agreement between Buyer and Seller ...” belies the conclusion that any one of the writings alone is the entire agreement between the parties. It is, therefore, concluded that the writings # 146, # 148 and # 149 are merely final as to the terms each writing contains.

Accordingly, the terms contained in writings # 146, # 148 and # 149 may not be contradicted by any prior or contemporaneous agreement, but may be supplemented or explained by consistent additional terms. See Iowa Code Ann. § 554.2202. In this case, the Acceptable Performance Letter, which guarantees production rates for the systems contained in writing # 146, # 148, and # 149, would contradict the partially integrated agreements which exclude all warranties not contained in the writings. See J. White & R. Summers, Uniform Commercial Code, § 12-4 at 568 n. 2 (3d ed. 1988) [hereinafter White & Summers] (“If ... the writing that includes a disclaimer is intended to be final, most courts hold that parol warranties are “contradictory” within 2-202 and hence inadmissible.”). Therefore, the Court finds the parol evidence rule prohibits evidence of the Acceptable Performance Letter to establish the letter was part of the original contract between the two parties.

The next question the Court must address is whether the parties modified their agreement to include the Acceptable Performance Letter. The Iowa UCC section on modification, rescission and waiver, provides:

1. An agreement modifying a contract within this Article needs no consideration to be binding.

2. A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement ón a form supplied by the merchant must be separately signed by the other party.

3. The requirements of the statute of frauds section of this Article (Section 554.2201) must be satisfied if the contract as modified is within its provisions.

4. Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.

5. A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

Iowa Code Ann. § 554.2209 (West 1991). 13 “The drafters of the UCC, through this section, changed the common law by (1) making modifications enforceable even if there was no consideration given and, pertinently for this action, (2) deeming enforceable written agreements that contracts could not' be modified by the parties unless the modifications were reduced to signed writings.” Green Constr. Co. v. First Indem. of American Ins., 735 F.Supp. 1254, 1260 (D.N.J.1990) (citing Wisconsin Knife Works v. Nat’l Metal Crafters, 781 F.2d 1280, 1286 (7th Cir.1986) (Posner, J.); and J. W. Goodliffe & Son v. Odzer, 283 Pa.Su *1147 per. 148, 423 A.2d 1032 (Ct.1980)), aff'\d 935 F.2d 1281 (3d Cir.1991).

Plaintiff has urged the parties modified the terms of their agreement, but has conceded there was no writing signed by both parties. This being the case, I conclude that as a matter of law there could not be a valid modification because the contracts specifically provided, “[c]hanges made in any of the specifications shall be valid only if in writing signed by authorized representatives of the Buyer and Seller.” (Dkt. 29 at A-21) (emphasis added). See generally, Comment 3 to Iowa Code Ann. § 554.2209 (“Subsection (2) permits the parties in effect to make their own Statute of Frauds as regards any future modification of the contract by giving effect to a clause in a signed agreement which expressly requires any modification to be by signed writing.”).

This determination does not, however, end the inquiry. The Iowa Code makes clear that while an attempt at modification may not satisfy subsections 554.2209(2) & (3), it can still operate as a waiver. See Iowa Code Ann. § 554.2209(4); see also Double-E Sportswear Corp. v. Girard Trust Bank, 488 F.2d 292, 295-97 (3d Cir. 1973) (Pennsylvania law). The Comments to the I'owa Code explain, “Subsection (4) is intended, despite the provisions of subsections (2) and (3), to prevent contractual provisions excluding modification except by a signed writing from limiting in other respects the legal effect of the parties’ actual later conduct.” Iowa Code Ann. § 554.2209 cmt. 4. For an attempted modification to act as a waiver, “[s]uch waiver must be demonstrated by more that mere parol evidence; course-of-performance/conduct evidence indicating a waiver is necessary.” Green, 735 F.Supp. at 1262. 2 William D. Hawkland, Uniform Commercial Code Series, § 2-209:05 at 138 (1982). 14 Indeed, plaintiffs point to a series of letters exchanged between MCP and Hy-drotile and conduct by the defendants after documents # 146, # 148, and # 149 were signed which indicate defendants intended the Acceptable Performance