goods to the worksite, and defendant is in breach of the contract by its failure to pay for them.
By way of defense, defendant claims that it submitted the purchase order under "economic duress," and that the contract is therefore voidable. The economic duress, according to defendant, is to be found in the fact that Graham, Van Leer was the sole local source for Duralab hoods,
making it fearful of repercussions, i.e., damages for defective performance or delay, under its own contract with Howard University had it sought to find a cheaper substitute which might not have been acceptable to Howard.
The circumstances, however, do not constitute the "economic duress" which is sufficient to relieve a party to a contract of his otherwise voluntary undertaking. See generally 13 Williston on Contracts §§ 1603, 1617 (3d ed. 1970). The compulsion to enter into a contract which may later be lawfully avoided must be the result of the other party's illegal coercive conduct, not merely the stress of market conditions or the victim's financial exigencies. Id.; e.g., Business Incentives Co. Inc. v. Sony Corp. of America, 397 F. Supp. 63, 69 (S.D.N.Y. 1975). Exclusive distributorships are a fact of market life; if they do not offend the antitrust laws, they are simply a circumstance to be taken into account by prospective buyers of a commodity who must realize that their economic choices are limited and plan accordingly. And virtually all construction contracts contain performance specifications and call for completion within a time certain. A general contractor who is forced into a harsh bargain with a subcontractor or supplier to meet his obligation to his client is no less bound to that bargain merely because business necessity dictates that he accept the unfavorable terms, unless the subcontractor/supplier has no right to demand such terms in the first place. See Chouinard v. Chouinard, 568 F.2d 430, 433-34 (5th Cir. 1978).
As evidence of Graham, Van Leer's loss of right to insist upon a higher price for the fume hoods, in its counterclaim defendant asserts that the December, 1983, telephone conversations between Sis and Elmore, Jr., formed an oral contract by which Graham, Van Leer agreed to supply Jones & Wood with Duralab hoods at not more than $1,000 apiece. By either's account of the conversations, however, there was neither an offer, nor an acceptance of an offer, to buy or sell. Sis requested a price "quote" for fume hoods and was given one. He did not purport to obligate his employer, Jones & Wood, to buy any number of them from Graham, Van Leer at any price at any time; conversely, he neither asked for nor was given a commitment by Elmore, Jr., to sell them to him. Thus, whether or not Jones & Wood might be entitled to show an oral agreement at variance with the terms of the written September, 1984, purchase order, the evidence presented simply does not establish any such agreement.
Jones & Wood's principal alternative theory upon which it seeks to hold Graham, Van Leer to a $1,000-per-hood price - promissory estoppel - fails for the same reason: irrespective of any justification for its reliance upon the erroneous quotation, Elmore, Jr., made no promise, express or implied, to sell Duralab hoods to Jones & Wood over the telephone. See N. Litterio & Co. v. Glassman Constr. Co., 115 U.S. App. D.C. 335, 319 F.2d 736, 739 (D.C. Cir. 1963).
In support of its remaining alternative theories - estoppel in pais and negligent misrepresentation - Jones & Wood adduced considerable evidence of "industry custom and practice." It appears that general contractors customarily wait until the final hours preceding the deadline for bid submission before preparing bids, and then usually do so on the basis of telephone inquiries of potential subcontractors and suppliers whose figures are then "shopped" among prospective competitors. Assuming Elmore, Jr., was aware of the custom, and that, on behalf of Graham, Van Leer, he must therefore be presumed to have responded to Sis' query in the light of it, the custom still does not support defendant's theories. A contractor who relies upon a verbal price quotation, which he may then "shop" on the market for a better one, without obtaining a binding commitment from the source of the quotation to adhere to it for the necessary time (by, for example, an option), is not justified in doing so; he relies at his peril.
By similar reasoning, a contractor who acts upon a price quotation from one who is not bound to honor it cannot complain even if he is negligently misinformed; he is himself contributorily negligent.
For the foregoing reasons, therefore, it is, this 1st day of April, 1987,
ORDERED, that judgment be entered on the complaint for plaintiff Graham, Van Leer & Elmore Co., Inc., against defendant Jones & Wood, Inc. for $ 22,800.00, together with interest at six (6) percent per annum from June 4, 1985, in accordance with D.C. Code Ann. §§ 15-108, 28-3302 (1981);
interest in accordance with 28 U.S.C. § 1961 (1982) from the date hereof; and costs; and it is
FURTHER ORDERED, that defendant's counterclaim is dismissed with prejudice.
Thomas Penfield Jackson U.S. District Judge