F. D. McKendall Lumber Co. v. Kalian

425 A.2d 515, 30 U.C.C. Rep. Serv. (West) 1237, 1981 R.I. LEXIS 1025
CourtSupreme Court of Rhode Island
DecidedFebruary 2, 1981
Docket79-107-Appeal
StatusPublished
Cited by38 cases

This text of 425 A.2d 515 (F. D. McKendall Lumber Co. v. Kalian) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
F. D. McKendall Lumber Co. v. Kalian, 425 A.2d 515, 30 U.C.C. Rep. Serv. (West) 1237, 1981 R.I. LEXIS 1025 (R.I. 1981).

Opinion

OPINION

MURRAY, Justice.

The plaintiff, F. D. McKendall Lumber Company (McKendall), initiated this civil action to recover money that the defendant, Robert Kalian d/b/a Inner City Development and Alta Builders (Kalian), allegedly owed McKendall for sales and deliveries of building materials. After a hearing on the merits of the plaintiff’s claims on February 5, 1979, a justice of the Superior Court entered judgment for the plaintiff in the amount of $1,448.19 on the Inner City Development account and $7,598.43 on the Alta Builders account. 1 The trial justice also found the defendant liable for costs and interest computed at 6 percent per an-num from August 7, 1976, the date of the filing of the complaint, until February 5, 1979, the date of the entry of the judgment.

Kalian does not dispute the fact that he purchased the materials from McKendall and that he owed plaintiff money on account. The sole issue presented by defendant’s appeal is whether the trial justice erred in awarding plaintiff 18 percent interest on the principal amount from the due date up until the date plaintiff filed its complaint.

Joseph Coster, McKendall’s office manager, was called as a witness by and for plaintiff. His testimony can be summarized as follows. Whenever a customer makes a purchase at McKendall Lumber, five copies of the sales slip are made. Three copies remain in the office, one is given to the customer, and the fifth, the “delivery receipt,” is shipped with the merchandise for the customer to sign upon his receipt of the merchandise. After the delivery receipt is signed by the customer, it is returned to the office. There, it is used to charge the account with the balance reflected on these receipts. The amounts shown on these cards are posted on a ledger card kept for each account.

*517 Coster testified that there were two ledger cards upon which defendant’s name appeared. One card, kept for the Inner City Development account, showed a balance due in the amount of $1,643.29. The other card, kept for the Alta Builders account, showed a balance due of $8,343.11. All of the delivery receipts, sales slips, and ledger cards for these two accounts were introduced into evidence as full exhibits. Coster also testified that it was McKendall’s practice to send out bills every month to each of its customers. Such monthly bills reflected the amount of interest charged. It is un-contradicted that defendant made payments on the accounts without objection up until the date of the filing of the complaint.

The plaintiff’s witness, Coster, was the only witness called by either party to testify at trial. At the close of .evidence, plaintiff stated that it was seeking recovery of the balance due on the account until the time the complaint was filed and 6 percent interest thereafter.

In support of its claim, plaintiff pointed out the fact that the following statement appeared on all of the delivery receipts. “All past due accounts are subject to a VA% finance charge which is an annual percentage rate of 18%.” The plaintiff argued that defendant had signed these slips and that by doing so he had agreed to be bound by the terms and conditions included therein.

The defendant argued both at trial and before us that although he signed the delivery receipts, such receipts were not legally binding. In the absence of a binding agreement, defendant continues, he can only be charged 6 percent per annum, as provided for in G.L.1956 (1969 Reenactment) § 6-26-1. 2

The scope of our review in this matter is limited by our well-recognized and oft-cited holding in Raheb v. Lemenski, 115 R.I. 576, 350 A.2d 397 (1976), that the findings of fact made by a trial justice are entitled to great weight and will not be disturbed by this court on appeal unless it can be shown that such findings are clearly wrong or that the trial justice misconceived or overlooked material evidence. Id. at 579, 350 A.2d at 399.

Because it involved the sale of goods, this contract is controlled by Article 2 of the Uniform Commercial Code, G.L.1956 (1969 Reenactment) §§ 6A-2-101 through 6A — 2-725. It cannot be disputed that there was a contract between the parties. By ordering the goods, defendant extended an offer that could be accepted either by a prompt promise to ship or by shipment itself. General Laws 1956 (1969 Reenactment) § 6A-2-206(l)(b). 3 The plaintiff did in fact accept this offer by timely shipping conforming goods to defendant; however, there was nothing in this contract that indicated at what rate of interest past-due accounts would be charged.

Because the delivery receipts supplied this additional term, we turn to § 6A — 2-207 for guidance. That section provides:

“6A-2-207. Additional terms in acceptance or confirmation. — (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the. additional or different terms.
*518 “(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
“(a) the offer expressly limits acceptance to the terms of the offer;
“(b) they materially alter it; or
“(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
“(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provision of title 6A.”

The trial justice made no finding as to whether defendant was a merchant within the meaning of § 6A-2-104, 4 and there is no evidence in the record to indicate that he was a “merchant.” Thus, the first sentence of § 6A-2-207(2) is controlling and the additional terms included in the delivery receipts became proposals for addition to the contract.

Kalian concedes that he or his agents signed the delivery receipts. We note here the general rule that a party who signs an instrument manifests his assent to it and cannot later complain that he did not read the instrument or that he did not understand its contents. See D’Aloisio v. Morton’s Inc., 342 Mass. 231, 172 N.E.2d 819 (1961) (storage receipts); Calamari and Per-illo, Contracts § 9-42 at 328-29 (2d ed. 1977).

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425 A.2d 515, 30 U.C.C. Rep. Serv. (West) 1237, 1981 R.I. LEXIS 1025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-d-mckendall-lumber-co-v-kalian-ri-1981.