Equitable Mfg. Co. v. Allen

• Decision Date: 17 October 1903
• Citation: 76 Vt. 22,56 A. 87
• Parties: EQUITABLE MFG. CO. v. ALLEN.
• Court: Vermont Supreme Court

56 A. 87

76 Vt. 22

EQUITABLE MFG. CO.

v. ALLEN.

Supreme Court of Vermont. Orange.

Oct. 17, 1903.

Exceptions from Orange County Court; Tyler, Judge.

Action by the Equitable Manufacturing Company against H. C. Allen. From a judgment in favor of defendant, plaintiff brings exceptions. Reversed.

Argued before MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

M. M. Wilson, for plaintiff.

J. D. Dennison, for defendant.

MUNSON, J. At a personal interview between the plaintiff's salesman and the defendant, negotiations were had for the sale by plaintiff to defendant of an assortment of jewelry for $100. The contract was prepared in duplicate upon order blanks furnished by the salesman, and the two papers were signed by both the salesman and the defendant, and one was retained by each When defendant signed the copy kept by him, he wrote upon it. "Date May 1, 1901. Ship April 1, 1901." This was done in the presence of the salesman and with his knowledge. The words, "Date May 1, 1901," were never written upon the plaintiff's duplicate, but the words, "Ship April 1, 1901," were written on it at the time it was signed. The salesman afterwards changed this, without the knowledge of either plaintiff or defendant, making it read, "Ship Feby. 15, 1901." The plaintiff, supposing the duplicate as received by it was the contract as executed, shipped the goods at the earlier date fixed by the alteration. The defendant had no knowledge of the alteration until after the goods were received and reshipped, and his action was not taken because of the premature shipment.

The defendant claims that the minds of the parties never met, and that if they did no contract in writing was completed. We cannot take this view of the case. The leaving of the defendant's duplicate with him, after he had made the additional entry with the salesman's knowledge, was an assent to the change made, and completed the agreement. It was then the duty of the salesman to alter his duplicate to correspond, but his failure to do so did not do away with the agreement. So there was a completed contract in the minds of the parties, identical in terms with the defendant's duplicate, and it was not necessary that both duplicates should be perfected to satisfy the statute of frauds. A written statement of the bargain agreed upon, signed by the party to be charged thereby, was taken by the vendee.

The alteration of the plaintiff's duplicate was made by the salesman after the contract was completed,...