Strong v. Alexander Milling Co.

The opinion of the court was delivered by Mason, J.: B. Strong (whose interests have passed to Mabel Strong) and the Alexander Milling Company entered into an arrangement by telephone under which the former was to ship to the latter a car of corn by March 22. Strong failed to make the shipment within that time but undertook to fill the contract on March 27. The milling company refused to receive it. Strong .sued the company for the refusal, basing his claim on the ground that in a confirmation, to which no objection had been made, he had added a provision to the contract that if he did not fill the order within the time agreed upon he might fill it at any time before he received a notice to cancel. A demurrer to the plaintiff’s evidence was sustained, and the appeal is from that ruling. The plaintiff’s confirmation was in the f^)rm of a printed document headed “Sale Contract,” with blanks which were filled in accordance to the terms agreed upon. Fourteen provisions were [480] printed on the back of the document and referred to on the front. One of them gave the seller the privilege of shipping after the time contracted for at any time before he should have notice of cancellation. The defendant did not reply to-this confirmation, but had already sent a letter of confirmation of its own which stated the terms of the contract, to which the plaintiff made no reply. We think the demurrer to the evidence was rightly sustained. It is not claimed that the provision on which the plaintiff relies was a part of the original oral contract. We see no reason why the failure of the defendant to reply to the plaintiff’s confirmation should have any greater effect than the plaintiff’s failure to reply to the defendant’s. For the plaintiff it is argued that his confirmation was in accordance with the general custom and the defendant’s was not. He testified thát his blank was the kind customarily used in the grain trade, “all having blank spaces to be filled out and all having a certain amount of printed rules and directions on them, the printed matter on the confirmations of different dealers varying somewhat.” The defendant’s letter began, “This is to confirm purchase” — giving the terms. It was no less effective for being all .in typewriting, with no printed “rules and directions.” The circumstance that the terms it stated agreed with the same items in the plaintiff’s confirmation .does not affect the matter. • The terms stated made a complete contract, and the adding of new terms by the plaintiff in his confirmation was as much a departure from the contract shown by the defendant’s confirmation as though the time of delivery named had been altered. There is room to doubt whether the printing of fourteen “rules and directions” on the back of a confirmation blank is fairly within the spirit of the practice of interchanging confirmations. At all events a plain and concise statement of the terms of the agreement is such a confirmation that the other party cannot evade its effect by sending one complicated by a printed code of his own devising. It may be noted that the buyer’s confirmation involved in Strong v. Thurston, 107 Kan. 368, 191 Pac. 575, authorized him to extend the contract (in the absence of an express countermand) on the seller’s failure to deliver. Here the seller reserves a similar privilege to himself in case of his own default. The present case differs from Hayes v. Cardwell, 107 Kan. 556, 192 Pac. 757, where as here each party sent a confirmation, the two [481] differing somewhat, in this: There one of the parties at once notified the other of his objection. Here neither did. It differs from Strong v. Thurston, supra, in that there only one of the parties sent a confirmation. The judgment is affirmed.