John S. Brittain Dry Goods Co. v. Birkenfeld

Buck, J.

Upon the undisputed facts before it, was the trial court justified in submitting to the jury the question of whether or not plaintiff had sold the goods in dispute outright to the firm of Genzberger, Barnett & Co. or had consigned them only ? We think not.. It was the duty of the court to have decided, as a matter of law, whether the goods aforesaid had been sold or consigned. There is nothing in the evidence offered by the plaintiff to show that its traveling salesman had ever had any other agreement with Genzberger, Barnett & Co. save one for a direct sale of the goods. From the testimony of said traveling salesman himself, it cannot in any manner be inferred that the goods ordered through him by the above firm were to be received on consignment. The testimony of Genzberger and Barnett as to the terms of the sale agreed upon between this firm and the traveling salesman of the plaintiff is undisputed. No question is raised as to the authority of the salesman to bind the plaintiff.

If, then, a contract was entered into between the plaintiff and the firm of Genzberger, Barnett & Co. on May 27, 1895, can it be reasonably contended that its terms were subsequently modified by reason of the facts that invoices containing the printed language which appears in the statement were sent and received, and Genzberger, Barnett & Co. retained the goods without objection ? We are of the opinion that it cannot be inferred from said facts that there was any modification of the original contract entered into. If, when plaintiff received the orders from its traveling salesman, it had seen fit to make the firm of Genzberger, Barnett & Co. agree to the terms as printed on its invoices, it should have done so before shipping the goods. But, having shipped them under one contract, it had no right, on its own motion, to modify the terms thereof. So far as Genzberger, Barnett & Co. are concerned, their original contract was being complied with when plaintiff shipped the goods. It is an elementary principle that the minds of parties contracting must meet before a contract results. The evidence is not sufficient to show that Genzberger, Barnett & Co. agreed to the terms the plaintiff had printed on its billheads or invoices.

Respondent recites the case of Newell v. Whitwell, 16 Montana 243, 40 Pac. 866, as upholding its contention that the original contract between plaintiff and Genzberger, Barnett & Co. had been modified. But there is a clear distinction between said case and the one at bar. In the Newell v. Whitwell case the invoices were in evidence for the purpose of ascertaining the character of a contract of sale, and in the present case they are relied upon to show a modification of a contract of sale the terms of which are conceded.

The order of the court is that the judgment be reversed, and the cause remanded, with directions to the lower court to enter judgment in favor of appellant.

Reversed and Remanded.

Hunt, J., concurs.