Wilmington Trust Co. v. Pennsylvania Co., 172 A.2d 63, 66 (Del.Supr. 1961); Norse Petroleum A/S v. LVO Intern Inc., 389 A.2d 771, 773 (Del.Super. 1978). A contract is formed at the moment the final act necessary for its creation takes place.
Under Delaware law, the place of contract formation is the place where the last act necessary for contract formation occurred. Norse Petroleum A/S v. LVO Intern, Inc., Del.Super., 389 A.2d 771, 773 (1978); Miller v. Newsweek, Inc., 660 F. Supp. 852, 854 (D.Del. 1987). Depending on whose version of the facts one adopts, the place of contract formation is either England, New York or Bermuda. The undisputed facts tend to show that at least part of the negotiation occurred in England.
The fact that the contract between Bundesen and McClain was formally accepted by plaintiffs in Delaware is the only basis upon which the plaintiffs can reasonably argue that McClain has transacted business within the meaning of § 3104(c)(1). See Norse Petroleum A/S v. LVO Int'l, Inc., 389 A.2d 771 (Del.Super. 1978) (contract considered to exist when the final act necessary for its formation takes place). Although this factor weighs in favor of applying § 3104(c)(1) to McClain, the Court holds that standing alone this factor is not enough to support a finding that McClain was doing business in Delaware.
Just as clearly, where substantive issues of interpretation of a contract are involved, the courts have in the past applied the law of the state in which the contract was made. See e.g., Oliver B. Cannon Son Co., Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super. 1973); Norse Petroleum A/S v. Lvo Intern Inc., 389 A.2d 771, 773 (Del.Super. 1978); Unit, Inc. v. Kentucky Fried Chicken Corp., 304 A.2d 320, 327 (Del.Super. 1973). As Judge Schwartz of this Court recognized in Sellon v. General Motors Corp., 521 F. Supp. 978 (D.Del. 1981), however, the courts of this state more recently have moved away from wooden application of these rules toward the more functional standards advocated by the Restatement (Second) Conflict of Laws.
Plaintiffs' claim against Pro Chem arises out of its role in the design and construction of the riser system, i.e., out of its performance of its contract with Swift. Although the contract may have been accepted at Pro Chem's New Jersey office, no questions as to its interpretation, existence, or validity have been raised. Cf. Norse Petroleum v. LVO International, Inc., 389 A.2d 771 (Del.Super. 1978) (under Delaware law, law of place where contract is formed determines its existence and validity). The undisputed facts disclose that the riser was to be erected by Pro Chem in Delaware; thus, if plaintiffs' claim sounds in contract, a Delaware court would apply Delaware law. Fairbanks, Morse Co. v. Consolidated Fisheries Co., 190 F.2d 817 (3d Cir. 1951).
1970); Pauley Petroleum, Inc. v. Continental Oil Co., 43 Del. Ch. 366, 231 A.2d 450 (1967), aff'd, 239 A.2d 629 (Del.Supr. 1968); Norse Petroleum A/S v. LVO International, Inc., 389 A.2d 771 (Del.Super. 1978). It is undisputed that the insurance contract involved in the present case was made in Pennsylvania, at the plaintiff's place of business. The exclusion in that case was, in fact, identical to exclusion (b) in the present case.
Under the Agreement, appellee was not obligated until April 15, 1982, to deliver the Note to appellants. Einhorn v. Ceran Corp., 177 N.J. Super. 442, 450, 426 A.2d 1076, 1080 (1980) (contract speaks as of date it was signed); Norse Petroleum A/S v. LVO Intern, Inc., 389 A.2d 771, 773 (Del.Super.Ct. 1978) (and citations therein) (contract considered to exist when final action necessary for its formation occurs). Consequently, the burden was on appellants to show by parol evidence that the parties intended the obligation to be effective for purposes of defining an anniversary date on April 5. Although Pauline Sacks testified that she intended her birth date of April 5 to be the anniversary date of the Note, she also testified that all documents were to be dated April 5, 1982, and that clearly was not what occurred.
Super. Ct. Civ. R. 56(c). Norse Petroleum A/S v. LVO Int'l, Inc., 389 A.2d 771, 774 (Del. Super. 1978). Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
The overt manifestations of assent control, not the subjective intent, and Defendant has presented no evidence to indicate that Plaintiffs' actions signify anything other than acceptance of the terms presented in the Contract. See Norse Petroleum A/S v. LVO International Inc., 389 A.2d 771 (Del. 1978); see also Diamond Electric, Inc. v. Delaware Solid Waste Authority, 1999 WL 160161, at *3 (Del.Ch. March 15, 1999) ("A contract is formed if a reasonable person would conclude, based on the objective manifestations of assent and surrounding circumstances, that the parties intended to be bound to their agreement on all essential terms."). Normally, a bill of sale functions to transfer interests at the closing of a transaction much like the recording of a deed upon a real estate settlement.
"Industrial America", Inc. v. Fulton Industries, Inc., Del. Supr., 285 A.2d 412, 415 (1971). Accord Norse Petroleum A/S v. LVO Intern, Inc., Del. Super., 389 A.2d 771, 775 (1978). In the case at hand, the Board looked at whether the parties reached an agreement.