Dan Miller was a commercial photographer who had taken a series of photographs that appeared in The New York Times. Newsweek magazine wanted to use the photographs. When a News-week employee named Dwyer phoned Miller, Dwyer was told that 72 images were available. Dwyer said that he wanted to inspect the photographs and offered a certain sum of money for each photo Newsweek used. The photos were to remain Miller’s property. Miller and Dwyer agreed to the price and the date for delivery. Newsweek sent a courier to pick up the photographs. Along with the photos, Miller gave the courier a delivery memo that set out various conditions for the use of the photographs. The memo included a clause that required Newsweek to pay $ 1,500 each if any of the photos were lost or destroyed. After Newsweek received the pack-age, it decided it no longer needed Miller’s work. When Miller called to have the photos returned, he was told that they had all been lost. Miller demanded that News-week pay him $ 1,500 for each of the 72 lost photos. Assume that the court finds Miller and Newsweek to be merchants. Are the clauses in the delivery memo part of the sales contract? Miller v. Newsweek, Inc., 660 F. Supp. 852, 1987 U. S. Dist. Lexis 4338 (United States District Court for the District of Delaware)
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