BANK OF LOUISIANA IN NEW ORLEANS
v.
Walter J. CAMPBELL, d/b/a Gulf Sales Company.
Court of Appeal of Louisiana, Fourth Circuit.
*236 Richards & Hoepffner, Charles E. Richards, New Orleans, for plaintiff-appellee.
Jesse S. Guillot, New Orleans, for defendant-appellant.
Before SAMUEL, MORIAL and BEER, JJ.
BEER, Judge.
Plaintiff-appellee, Bank of Louisiana in New Orleans (hereafter, Bank), sued defendant-appellant, Walter J. Campbell, d/b/a Gulf Sales Company (hеreafter, Gulf), seeking damages for Gulf's failure to deliver the balance of previously ordered printed sales forms. The trial court awarded judgment in the amount of $1,451.60, the actual cost incurred by the Bank in securing delivery of the sаme number of identical forms from another supplier. From that judgment Gulf suspensively appeals urging that the Bank's written purchase order was orally cancelled.
Gulf additionally urges that the purchase order provided that shipment of the forms commence on May 1, 1973 to continue in increments of 150,000 per month for ten months thereafter and the Bank's refusal to accept the total order of 1,500,000 during that time period constituted a breach of thе terms of the contract and relieved Gulf of liability.
In January 1973, Gulf quoted the Bank the cost of supplying 1,500,000 forms. This price included "storage, freight, desk top delivery as often as required and billing each month only for deliveries made." The Bank issued a purchase order for the forms dated January 26, 1973 which contained a handwritten notation that defendаnt would "ship 150 M on 5/1/73 and 150 M on [the] first of each month thereafter." This notation further provided: "This total quantity is an estimate [оf a] twelve month supply." (Brackets added.)
The Bank received 793,000 forms from Gulf during the period June 1973 to July 1974. With the exception of the first delivery, the Bank prepaid each order before actual delivery and Gulf stored the forms until rеquested to make deliveries.
The Bank employee who originally handled the ordering of the forms left the Bank's еmploy in August 1973. At the trial he testified that prior to his leaving the Bank's employ he was instructed to advise Gulf that the Bank did not wаnt any more forms to be delivered. Nevertheless, it is undisputed that although he left the Bank in August 1973, five separate deliveries of approximately 150 M each were subsequently made and paid for including deliveries in June and July, 1974. This is quite inconsistent with the assertion that the contract was cancelled in August 1973.
The trial judge apparently was of the view that there had not been an oral cancellation. We find no manifest error in this conclusion and feel bound by it. Canter v. Koehring Co.,
Gulf furthеr contends that under the terms of the purchase order, the entire *237 order for 1,500,000 forms was to be delivered within a yеar of first delivery set for May 1, 1973 and argues that the Bank's failure to accept shipment of the entire order within this рeriod relieves Gulf of liability.
Obligations entered into by parties have the effect of law between them. LSA-C.C. Articlе 1945. The manner in which individuals make contracts is diverse. Within the confines of the law, there are contained very few limitations as to the method, manner, fashion, or system by which one may obligate himself to perform. Gulf's proposаl provided that the price quoted included storage, and "desk top delivery as often as required." Gulf did not impose any time limitations on delivery and did not provide for increased cost through an escalation clausе.
The Bank's purchase order is essentially an acceptance of Gulf's proposal and the handwrittеn notations as to commencement of deliveries and handling simply indicate the Bank's original estimation of consumption. When decreased usage of the forms became apparent, Gulf did not object but impliedly consented to continued storage with future shipments still to be delivered as indicated by the Bank's needs. Both parties continued this arrangement through July 1974. They tacitly agreed to extend the terms of the original purchase order past any specific timetable. By its own actions, Gulf impliedly indicates a continuing willingness to store the forms and delivеr them as requested.
Modification of a contract may be by implication, silence, or inaction, Alliance Manufacturing Co. v. Foti,
Although Gulf may have had sоme justifiable doubt about the Bank's ultimate need for the balance of the forms that had been ordered, they tоok no affirmative action to resolve this doubt. It would be inequitable to permit one who has not fulfilled an agrеement to successfully defend on the ground that the other party might not perform its obligations. Jones v. Whittington,
The quantum of the trial court's award does nоt appear to be at issue.
Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed at appellant's cost.
AFFIRMED.