United States Court of Appeals, Ninth Circuit
575 F.2d 1270 (1978)
Mitchell Construction Company (Mitchell) (defendant) used certain forms belonging to Interform Company (Interform) (plaintiff) for molding concrete on two construction jobs. Mitchell and Interform entered into negotiations in summer 1971 regarding Mitchell’s potential rental of the forms. On September 8, 1971, before either of Mitchell’s construction jobs began, Mitchell spoke with Miller, and Interform salesman, and stated that he wanted to purchase Interform’s forms. Miller believed Mitchell was joking because all discussions between the parties up to that point involved Mitchell’s desire to rent the forms. Later on September 8th, Mitchell sent a purchase order to Interform requesting that Interform “furnish” forms to Mitchell. Mitchell later engaged in a phone conversation with Dashew, Interform’s president, during which a rental agreement as to quantity and price of forms was reached. Interform then sent three bills of lading and three invoices to Mitchell. These six documents specifically referred to Mitchell’s “rental” of the forms. Mitchell did not object to the language on these forms. Later, Mitchell paid $32,000 to Interform for its use of the forms. Mitchell stated that this fee was the purchase price for forms. Interform, however, stated that this was the rental fee for its forms for Mitchell’s first construction job, and that it was entitled to damages based on Mitchell’s use of the forms in a second construction job. Interform brought suit in federal district court against Interform seeking damages and an acknowledgement of its ownership of the forms. The trial court held that the agreement between Mitchell and Interform was for the rental by Mitchell of Interform’s forms. The trial court awarded damages to Interform, and Mitchell appealed.
Rule of Law
Holding and Reasoning (Sneed, C.J.)
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