Dorton v. Collins & Aikman Corp.

453 F.2d 1161 (6th Cir. 1972)

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Nature of the Case

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Facts

In more than 55 transactions, one of the partners in P either gave orders to D's salesman or telephoned D's order department in Dalton, Georgia, and ordered certain quantities of carpets listed in D's catalog. The small print on the reverse side of D’s acceptance forms provided, among other things, that all claims arising out of the contract would be submitted to arbitration in New York City. Each acknowledgment form was signed by an employee of D’s order department and mailed to P on the day the telephone order was received or, at the latest, on the following day. Absent a delay in the mails, P always received the acknowledgment forms prior to receiving the carpets. In all cases, P took delivery of and paid for the carpets without objecting to any terms contained in the acknowledgment form. P sued D for damages from a breach of contract after he discovered that D's carpet was not 100% Kodel as was agreed. D attempted to obtain a stay of the proceedings pending arbitration as required under its form. The Court held that the form did not make acceptance of all its provisions a condition precedent to the formation of a contract and found that the contract was controlled by UCC 2-207(3); the arbitration agreement was not binding: If the seller . . . ships the goods and the buyer accepts them, a contract is formed under subsection (3). The terms of this contract are those on which the purchase order and acknowledgment agree, and the additional terms needed for a contract are to be found throughout the U.C.C. . . . The U.C.C. does not impose an arbitration term on the parties where their contract is silent on the matter. Hence, a conflict between an arbitration and a no-arbitration clause would result in the no arbitration clause becoming effective. D appealed.