The principle of acceptance by conduct may be involved not only when all the terms of a contract are contained in a writing, but also when it is sought to import into a contract a statement printed on a letter heading or tag upon goods, or in some other paper delivered to the acceptor. The sole question seems to be whether the facts present a case where the person receiving the paper should as a reasonable man understand that it contained terms of the contract which he must read at his peril, and regard as part of the proposed agreement. The precise facts of each case are important in reaching a conclusion.79
77 Louisville, etc., R. Co. v. Meyer, 78 Ala. 597; Gott v. Dinamore, 111 Mass. 46; Boetwick v. Baltimore & O. R. Co., 45 N. Y. 712; Guillaume v. General Transportation Co., 100 N. Y. 491, 3 N. E. 489.
78Dale v. See, 51 J. N. L. 378, 382, 18 Atl. 306, 5 L. R. A. 583. In this case the plaintiff sent goods to the defendant to be dyed. On the defendant's bill for the work there was printed the notice "all claims for deficiency or damage must be made within three days from date, otherwise not allowed." It was held, though brought to the knowledge of the manufacturer, that it did not bind him. See also Edgar v. Breck, 172 Mass. 581, 52 N. E. 1083.
79In Anaconda Copper Mining Co. v. Houston, 107 111. App. 183, a printed stipulation above the date line, but below several written words in a letter, offering terms of sale, was held part of the contract assented to.
In Iambeth Rope Co. v. Brigham, 170 Mass. 518,49 N. E. 1022, the words "terms thirty days" printed on a bill lent to the buyer, and to which the buyer made no objection, was held to constitute an effective agreement. It will be noticed in this case that the provision was for the acceptor's benefit, since otherwise he would have been liable for the price immediately.
In Robinson r. Merchants' Despatch Company, 45 Ia. 470, a shipping receipt contained the printed statement at the top "through without transfer." The goods were transferred and destroyed by fire in transit. The carrier whs held liable in spite of a written clause exempting it from liability for loss by fire. See also to the same effect-Stewart v. Merchants' Express Co., 47 Ia. 229, 29 Am. Rep. 476. In Yorston v. Brawn, 178 Mass. 103, 59 N. E. 664, an order addressed to publishers for a steel engraving was interpreted in the light of printed matter at the top of the order. In Hadda-way v. Post, 35 Mo. App. 278, underneath the signature to a contract there was printed a reference to terms on the back of the paper. It was held that then terms formed part of the contract. In Bell v. Mills, 78 N. Y. App.
Div. 42, 80 N. Y. Supp. 34, a seedsman's catalogue contained a disclaimer of warranty and in each bag of seeds there was also a disclaimer. On the first trial it was held that the disclaimer was to be included in the seller's offer; on retrial, however, evidence was allowed that the purchaser had not read the disclaimer, which was in fine print. In Ross v. Northrup, 158 Wis. 327, 144 N. W. 1124, whipping tags on packages of seeds contained a statement printed in red ink in conspicuous type that no warranty express or implied was given, The disclaimer was held effectual. On the other hand in the following cases a printed statement was held ineffectual. In Summers v. Hibbard Co., 153 111. 102, 38 N. E. 899, 46 Am. St. Rep. 872, there was printed at the top of a letter-head "All sales subject to strikes and accidents." It was held that these words were not incorporated in an offer of sale written thereunder. A similar decision is Augusta Factory v. Monte, 132 Ga. 503, 64 S. E. 553. See also Garfield, etc., Coal Co. v. Pennsylvania Coal, etc., Co., 199 Mass. 22, 84 N. E. 1020. In Edgar v. Brack, 172 Mass. 581, 52 N. E. 1083, there was a printed statement on a bill for certain bulbs, to the effect that the seller did not warrant. It was held that whether or not the acceptance of such a bill afforded evidence of an agreement to rescind an original executory contract containing a warbut if the ultimate buyer has no reason to suppose that his seller has any interest in the words stamped or printed by the original seller, there seems little reason to infer that an offer is either made or accepted.