Burroughs Adding Machine Co. v. Harris

KOFORD, P. J.

Defendant appeals from a judgment in favor of plaintiff for the agreed purchase price of an adding machine. The machine was delivered to defendant about September 22, 1927, and was returned to the plaintiff October 1. The questions presented by the appeal are whether there was a contract of sale and, if so, was it canceled when the machine was returned?

C. A. Irons, a salesman working either for the plaintiff or for the Adding Machine Exchange store at 562 Market Street, San Francisco, obtained the signature of the defend-' ant to an order or contract made out upon a printed form which was apparently prepared and supplied by plaintiff.' It read: “Please enter the order of the undersigned for the following secondhand adding machines. ’•’ Here follows description of the machine and numerous clauses defining the obligations of the parties. The document contained the fur-' ther clause: “This order is not binding until accepted by the Company at its Executive Office. Notice of acceptance is hereby waived by the undersigned.” A blank space was provided at the end of the form for the signature of someone on behalf of plaintiff at its executive office.

B. Harris is the defendant and the sole proprietor of The Harris Company. His testimony was that he told Irons that the machine was not satisfactory and that thereupon Isons said “send it back and I will cancel the contract” so defendant gave the contract to Irons and sent the machine back to the Adding Machine Exchange store, October 1st. Mr. Irons, the salesman, was not a witness and defendant’s version of his conversation with him is therefore uncontradicted except possibly the following: C. A. Ray, general manager of the Adding Machine Exchange store, testified that upon the return of the machine to his store he telephoned to the defendant’s store asking for Mr. Harris and that whoever answered the phone said the machine was returned pursuant to arrangements made with Mr. Irons for a different and later type of machine, so he let the machine remain.

Mr. Engelhardt, manager of Burroughs Adding Machine Company at San Francisco, testified without objection that

[606]

no one but himself had authority to take back sold machines and he only upon instructions from the home office; that before delivery of the machine certain attachments had been added at defendant’s request. He also testified that he sent letters to defendant. These letters were self-serving in the main part and had no evidentiary value except to show that the return of the machine was not accepted as a rescission or cancellation of the alleged contract.