Arthur Whitten Co. v. Arch Narrow Fabric Co.

TANNER, P. J.

This is an action to recover the price of certain goods sold by the defendant.

This case is heard upon the defendant’s plea that contracts were made within this state at the time when the plaintiff was a foreign corporation and failed to appoint a resident attorney.

It appeared in evidence that in the case of one of the orders involved in the action the order was given verbally in this state, and in the case of the other one there is a contradiction in testimony as to whether the order was given verbally in this state or whether it was given in this state and accepted by telephone in Boston.

In both cases, however, it appears that the plaintiff in accordance with 'the general mercantile custom of ordering goods from salesmen reserved the right of confirming or not confirming the order, and in the case at bar sent trade notes to the defendant, upon which notes is printed a blank for the acceptance of the printed note by the defendant company; that in the case of each order the defendant company wrote its acceptance upon the trade note and returned the same to the plaintiff; that in the case of one order this was done upon the solicitation of the plaintiff in his letter of October 31, 1925.

The plaintiff claims that the contract was completed when they mailed the trade notes to the defendant and that their request for a signature and. return of the trade note was simply for the purpose of getting an acknowledgment of their acceptance.

While it is admitted that the order as given orally was not changed in the trade notes, we find in the trade notes six printed conditions applying to the sale which we doubt very much were enumerated in the verbal order. At any rate, it appears to us that the plaintiff sought to- merge the verbal order into a written contract and that it did so. We think this was the real purpose of insisting upon the return of the acceptance of the trade notes to the plaintiff, and we must, therefore, find in accordance with the universal rale of law that the contract was completed by the mailing of the acceptance of the trade notes by the defendant in this state.

For plaintiff: Murdock & Tilling-hast. For defendant: Arthur G. Levy.

The plea must therefore be sustained.