Berwick & Smith Co. v. Salem Press, Inc.

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Facts: Defendant, Berwick & Smith Co. wanted to publish a two-volume work called "Masterplots." They went to Plaintiff, a publishing and binding company, to have Masterplots published. Plaintiff quoted two prices (per book). Each depended on the quantity of orders. The more books printed, the lower the price per book. Plaintiff did not specify that the custom in the trade is that each volume counts as a separate order for price determination purposes, i.e., 5,000 of each volume of Masterplots does not warrant the same price per book as if one orders 10,000 copies of one volume. Berwick ordered 5,000 copies of each volume, expecting to pay the 10,000 copy price per book.

Proc. Hist: Defendant filed motion for directed verdict. Trial court denied motion, holding that what the contract should be is not a matter of law; it is a matter of fact.

Issue: Whose idea of what the contract entails should be enforced?

Arguments: Defendant argued that it didn't know or understand that each volume counted separately. Plaintiff said that it is the standard custom in the publishing industry to count each as a separate book.

Holding: Publisher's idea of what the contract was is the valid one.

Reasons: "Where the usage is established, the presumption is that the parties contracted with reference to it."

Judgment: Exception overruled.