Interform Company v. Mitchell

575 F.2d 1270 (9th Cir.1978)

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Nature of the Case

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Facts

Preliminary negotiations between the parties centered entirely upon the rental of forms. In a face to face, meeting D claims that there would be a purchase. D contends that the contract of sale was agreed to orally at that time, and was confirmed by a document which D sent to P. That document, was backdated to September 8, was written between September 13 and 17 and was received by P on September 21. P's salesman's version of events was accepted by the trial court. This was supported by testimony of the pilot who had flown D to Seattle and accompanied him on the tour. The trial judge agreed that the contract was arrived at during a telephone conversation on September 13 between D and P, at which time a rental agreement as to quantity and price was reached. Several days after D's purchase order was dispatched, a confirmation was sent by P. Three bills of lading and three invoices from P followed, each specifically referring to the 'rental' of the forms. No one at D objected to these six documents. At trial, D testified that they had never seen or checked the invoices or bills of lading. The trial court judge did not believe D. The court accepted P's evidence of a custom within the construction trade by which builders would order equipment for rental on purchase forms. The court found that D had been unjustly enriched by its second use of the forms. It found the fair rental value for the second job to have been $29,250 and, after deducting certain expenditures by D, awarded $26,750 to P. It denied D's counterclaim and declined to award attorney's fees to P. D appealed and P disputed the denial of attorney fees.