Attempts have been made by manufacturers to apply this principle to sales of merchandise so as to bind any purchaser by some sort of contract. As between the original parties to a sale this seems possible. Thus, if the terms of an agreement with the seller are plainly stamped on a machine, a contract between the buyer and the seller to observe those terms may arise, when the buyer accepts delivery of the machine.80 But whether a statement so printed upon a machine ranty, it was at least not conclusive of rescission.
In Ramaley v. Leland, 6Rob. (N.Y.) 358, a printed notice on the top of each page of a hotel register disclaiming liability for valuables not deposited in the office safe, did not bind the guests who signed the book, unless their attention was called to it. In Tichnor v. Hart, 52 Minn. 407, 54 N. W. 369, a printed prospectus was held not incorporated in a contract to subscribe to a book to which the prospectus related unless the prospectus was handed to the subscriber or he knew of its contents. In B. F. Sturtevant Company v. Fireproof Film Co., 216 N. V. 190, 110 N. E. 440, an offer for a contract contained the following statement printed at the bottom of the stationery: "All agreements are contingent upon strikes, fire, accidents or delays beyond our control. All prices are subject to change without notice, and all contracts and orders taken are subject to the approval of the executive office at Hyde Park, Mass." It was contended that an acceptance of the offer did not create a contract because no confirmation had been given by the executive office at Hyde Park. The point was raised for the first time in the appellate court and that court, observing that the print was fine, that the first typewritten numeral indicating the page number of the letter was typewritten over the printed matter; and that the language of the typewritten offer was clear, and did not refer to the print, said that if an issue had been raised upon the trial whether the print formed part of the proposal that issue would have presented a question of fact for the jury; but that it could not be said as matter of law that an offer expressed in clear terms was qualified by matter printed in small type at the top or bottom of office stationery. Cf. Poel v. Brunswick-Balke-Coliender Co., 216 N. Y. 310, 110 N. E. 619.
80Henry v. A. B. Dick Co., 224 U. 8. 1, 14, 56 L. Ed. 646, 32 Sup. Ct. Rep. 364. In this case a patented machine was sold and there was attached thereto the following printed statement:
"This machine is sold by the A. B. Dick Co. with the license restriction that it may be used only with the stencil paper, ink and other supplies made by A. B. Dick Company, Chicago, U.S. A." The court said (at page 14) "that the license agreement constitutes a contract not to use the machine in a prohibited manner, is plain." To the same effect, see Heaton-Penin-sular Button-Fastener Co, v. Eureka Specialty Co., 77 Fed. 288, 291, 26 C. C. A. 267, 35 L. R. A. 728. In these cases it was primarily held that the defendants were guilty of an infringement of patent. Cp. Bauer v. O'Donnell, 229 U. S. 1,57 L. Ed. 1011, 33 Sup. Ct. Rep. 616, and see Boston Store v. American Graphophone Co., or book can create a contract between any subsequent purchaser of the article and the original seller, seems very doubtful.81 There would seem, however, no difficulty in the seller's making a general offer to all the world in this way, to be accepted by taking ownership in the property, provided consideration could be found for the promise of the purchaser, and also such communication to the promisee as is necessary for a contract.82 If the ultimate purchase is not from the offeror, but from one who has acquired from him absolute and unqualified ownership, it would seem impossible to treat the purchase of the property as consideration for a promise of the purchaser to the original seller, unless at least the facts warranted the assumption that the immediate seller demanded as part of the consideration of the sale a promise to the original seller,-an improbable case.83 Further, lack of communication to the original seller would prohibit any implication of a promise to him. It may, however be urged that there is fairly to be inferred a promise from the ultimate buyer to the person from whom he bought that the buyer would comply with the terms stamped or printed upon the goods; that the promise was for the benefit of the original seller and enforceable by him. If tike ultimate seller is, and is known by the buyer to be under a duty to the original seller to make such a bargain for his benefit, the inference that such a contract was proposed when the goods were offered for sale might be a fair one;
246 0. S. 8, 62 L. Ed. 561, 38 Sup. Ct. 257.
81In Bobbs-Merrill p. Straus, 210 U. S. 339, 28 Sup. Ct. 722, 62 L. Ed. 1086, the following notice was printed at the beginning of a book: "The prioe of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a leas price will be treated as an infringement of the copyright." The plaintiff brought suit for infringement of copyright against the defendant, a sub-vendee. The question of whether a contract could be made out was not discussed, the court saying (page 350): "There is no claim in this case of contract limitation, nor license agreement controlling the subsequent sales of the book." It is to be noticed that the words printed in the book do not purport to be words of agreement but simply limitation of authority. In McGruther v. Pitcher, [19041 2 Ch. 306, the question was squarely raised and the Court of Appeal held that the sub-purchaser did not by purchasing, bind himself not to resell except on the printed conditions. The legality of such contracts if made is not here under discusion, As to this, see infra, Sec. 1649.
82 See supra, Sec.Sec. 24, 70, 71.
83 As to a contract of this sort, see infra, Sec. 114.