## Facts

- A woolens jobber (buyer) made four oral contracts with a commission house (seller’s agent) to buy multiple lots of woolen cloth sold “by sample.”
- After the oral agreements, the seller sent a written confirmatory memorandum containing additional terms, including a clause allowing cancellation of all orders if the buyer defaulted on any one order.
- The seller delivered only part of the goods under each contract.
- The buyer asserted some delivered cloth was inferior to the samples, claimed breach of warranty, and claimed failure to deliver the remaining goods.
- The buyer later refused further deliveries, citing poor quality; the seller resold the rejected goods to other customers.
- At trial, the seller introduced evidence that other customers bought the same cloth “without complaint,” offered to prove the cloth was of good quality; the customers did not testify.
- The jury found for the seller, and judgment was entered for the seller.

## Issues

1. Whether additional terms contained in a seller’s confirmatory memorandum sent after oral contracts were formed became part of the contracts without proof of the buyer’s assent (and, as framed by the court, without supporting consideration for the added provisions).
2. Whether the buyer’s acceptance of some goods barred the buyer from asserting a breach-of-warranty claim based on nonconformity to sample or quality.
3. Whether testimony that other customers bought the same goods and made no complaints was admissible to prove the intrinsic quality of the goods when those customers did not testify.

## Decision

- The Appellate Division reversed the judgment for the seller and ordered a new trial.
- The court held the confirmatory memorandum’s additional conditions, including the broad cancellation clause, were not shown to be part of the parties’ contracts.
- The court held the trial court erred by treating the buyer’s acceptance as precluding a breach-of-warranty claim.
- The court held the “no complaints” evidence was improperly admitted to prove quality and was prejudicial.

## Legal Principles

- A written confirmation sent after an oral agreement does not add material contract terms absent proof of the other party’s assent; unilateral additions are not binding.
- A buyer may accept goods and still pursue breach-of-warranty remedies for nonconformity, subject to applicable notice and related requirements.
- Evidence that non-testifying third-party customers made no complaints is inadmissible when offered to prove the intrinsic quality of goods, and its admission may require reversal if prejudicial.

## Conclusion

The court ordered a new trial because the seller failed to show the buyer agreed to material terms inserted in a later confirmation, acceptance of goods did not automatically bar warranty claims, and the jury was improperly influenced by indirect “no complaint” evidence offered to prove product quality.


Altkrug v. William Whitman Co., 185 A.D. 744, 173 N.Y.S. 669 (N.Y. App. Div. 1919)