Apex Engineering Co. v. North American Oil Consolidated

LANGDON, P. J.

This is an appeal from a judgment for the defendant in an action to recover $1,750, the agreed purchase price of a certain heat exchanger manufactured by plaintiff for the defendant.

The principle involved upon the appeal is fundamental in the law of contracts. It is presented by the following facts: On May 22, 1924, the representative of the defendant company gave to the representative of the plaintiff company an order for one “Heat Exchanger consisting of material as per letter of December 12, 1923,” at a price of $1,750. This was termed an “emergency order” and contained the direction “please prepay freight and include in invoice.” The heat exchanger was to be made up. On the reverse side of the order it was stated: “It is understood that this emergency order is entirely exhausted by the delivery of goods of one date and one invoice. . . . All goods delivered under this order must be receipted for on this order by person taking delivery and duplicate of this order sent at once to our purchasing department at Field Office, Taft, California, same to be followed by invoice (in triplicate) which shall cover all goods delivered under this order and none other.”

This order was received from the defendant company by the president of the plaintiff company. The next day, upon his arrival at Los Angeles at the offices of the plaintiff company, he sent an acknowledgment of this order on behalf

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of his company, together with an invoice calling for "first payment on 1 Apex Heat Exchanger Unit @ $1750.00— $583.33.” The terms in the acknowledgment of order were stated to be "one-third with order. Bal. net 30 days

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10 days.” Upon the date of the plaintiff’s acknowledgment of order and invoice above mentioned (May 28, 1924), plaintiff also sent defendant a letter, which read, in part, as follows:

"We are attaching hereto our formal acknowledgment of your order No. 1525 which was given to the writer yesterday. We have entered our shop orders for this equipment and have been promised shipment of same on or before Saturday, June 14.

"The writer neglected to call your attention to the terms which we mentioned in our letter to Mr. Simons of December 12th which covers the payment of one-third with order, balance net cash thirty (30) days from date of invoice, with two per cent (2%) discount for payment of balance within ten (10) days from date of invoice. We trust you will pardon our oversight in not calling this to your attention at that time, and if convenient, we will appreciate receiving your check covering this first payment as soon as possible.”