C. Itoh & Co. v. The Jordan International Co.
United States Court of Appeals for the Seventh Circuit
552 F.2d 1228 (7th Cir. 1977)
C. Itoh & Co. (plaintiff) sent Jordan International Co. (defendant) a purchase order for steel coils; Jordan replied with a conditional acceptance requiring Itoh's assent to additional terms, including an arbitration clause on the reverse side. Itoh never expressly accepted or objected to the arbitration clause, but both parties began performing the deal. After the steel coils proved defective, Itoh sued, and Jordan moved to stay the suit pending arbitration under its conditional acceptance's arbitration clause; the district court denied the motion, and Jordan appealed.
Whether, when a contract is established not by the parties' writings but by their conduct, the established contract can consist of terms on which the parties' writings did not agree.