Jayne, Proctor and Schettino. The opinion of the court was delivered by Jayne, S.j.a.d.
If we omit, as we shall, from this prefatory statement the competitive rays and shadows of the evidence, it discloses rather distinctly the following facts.
The defendant is engaged in Newark in the business of selling coin automatically operated phonographic music machines popularly called juke boxes. In consequence of some previous negotiations the plaintiff, a resident of Wakefield, Massachusetts, visited one M.J. Gillson on March 15, 1951, at the hotel Parker House in Boston. Gillson was acting in a capacity characterized by the president of the defendant company as a "distributor" of its machines and in one instance in his testimony as its "agent." Whatever may be the discriminative conception of his relationship to the defendant, Gillson's purpose was to sell its machines to the plaintiff.
A printed form entitled "Purchase and Sales Contract" was made applicable in the handwriting of Gillson to the
transaction in which the plaintiff purchased and acquired five machines from the defendant, for which he paid the sum of $1,747.50.
The present controversy arises from the dissimilarity in an important respect between the original purchase and sales contract received and accepted by the defendant and the copy delivered by Gillson to the plaintiff. Both bear the signatures of Gillson and of the plaintiff, and both contain the following terms and provisions which deserve quotation:
"Machines will be located in territorial limits of City of Cambridge, Mass. Mr. MacLeod to have exclusive rights.
The purchaser fully understands that this purchase order is complete in itself, and hereby agrees that it cannot be RESCINDED; that it contains all the terms of any agreement or contract between the Purchaser and AJAX DISTRIBUTING COMPANY and that no other inducements have been made to influence this sale and that in the event that this order is accepted by AJAX DISTRIBUTING COMPANY that said Company will be bound only by written or printed terms appearing on the face hereof.
I HAVE READ THIS ORDER THROUGH AND UNDERSTAND ALL ITS TERMS AND CONDITIONS."
It seems evident that after Gillson and the plaintiff had subscribed their signatures and before the plaintiff delivered his check to Gillson in payment of one-half of the purchase price as required, the discussion of the transaction continued with the consequence that Gillson in the space on the face of one copy of the contract immediately following the clause stating that the company would be bound only by written or printed terms appearing on the face of the contract, interlineated the following: "Also condition as stated in rider No. 5089." Gillson thereupon prepared in his handwriting on the correspondence stationery of the hotel and attached to the plaintiff's copy of the contract this so-called rider:
As representative of Ajax Distributing Co. of Newark, N.J. I agree to repurchase route of Music ...