Burroughs Adding Machine Co. v. Proprietors of Cemetery

Crosby, J. This is an action of contract to recover the price of an adding machine, bought upon a written order given by the defendant to the plaintiff. While the order was not signed by the plaintiff it may fairly be treated as an acceptance by the defendant of a previous oral offer made by the plaintiff, which transaction constituted a binding contract between the parties. The contention of the defendant, that the order was obtained [380] by reason of the fraudulent representations of the plaintiff, cannot be sustained in view of the finding of the Municipal Court that the defense of fraud was not proved. The case was tried upon the third count of the declaration, the first and second counts having been waived. The contract contained among other provisions the following: “Should there be any failure to pay draft or other demand for cash payment or for deferred payments when due, it is agreed that the entire unpaid balance shall at once become due and payable.” “It is agreed that the title to the said adding machine shall -be vested in you until the purchase price or any judgment for the same is paid in full. It is expressly agreed that this order shall not be countermanded.” The judge found as a fact that “a machine, satisfying the contract requirements, was delivered to the defendant December 12, 1912, set up-and demonstrated, but that the defendant did not, at or after such delivery, accept said machine as a fulfilment of the contract.” In view of this finding we are of opinion that the defendant became liable to pay the contract price in accordance with the clause of the contract first above quoted, and, the defendant having failed to pay upon demand, the entire unpaid balance became due and payable. The third count declares úpon the contract, and the plaintiff avers performance on its part and alleges that there is due thereon the amount of the stipulated price. This is correct and sufficient. Accordingly the defendant’s third and fourth requests could not have been given. In view of the liability of the defendant upon the clause of the contract first above mentioned, it is unnecessary to decide whether the bringing of the action constituted a waiver by the plaintiff of its rights as owner of the machine, and vested the title thereto in the defendant, and thereby entitled the plaintiff to recover the purchase price. Order dismissing report affirmed.