Question 2

Dr. Byer is a dentist. Her dental offices are located in one wing of a house in which she and her family reside. On nights and weekends Dr. Byer and her family use the dental office waiting room as their family room (watching television, playing games, reading, conversation).

Dr. Byer wanted a new couch for the waiting room/family room. She noticed the following newspaper advertisement for a forthcoming sale at Interior Design: "Weekend sale. 25% off selected floor items." Because of the advertisement, she visited Interior Design and was greeted there by Seline, a salesperson at the store.

Dr. Byer found a style of couch ("Occidental") that she liked for the waiting room/family room. A large tag attached to the couch read: "Regular price $1,600. Sale price $1,200." When it sells the Occidental for $1,600, Interior Design makes a $600 profit.

While she liked the style of the Occidental, Dr. Byer didn't care for the fabric on the floor model. On a nearby fabric display stand she found two fabrics in which the couch could be upholstered by special order, but she wanted to take the two fabric samples with her to see how they would look in the waiting room/family room. She said to Seline: "I'm going on a two week vacation. Would it be possible for me to reserve the couch now, take the fabric samples for a few weeks, choose a fabric, and order the couch at the sale price when I come back?" Seline said: "We could do that if you want. Let's go to the main desk." The two of them then walked to the store's main desk. In a binder entitled "Fabric checkout", kept at the main desk, Seline wrote the name and number of the two fabric samples and Dr. Byer's name, address, and telephone number. Dr. Byer signed her name next to this information. Without any further relevant conversation about the couch, Dr. Byer left with the two fabric samples.

The next morning, in a journal that Seline kept in her own personal desk at Interior Design, Seline wrote Dr. Byer's name, address, and telephone number accompanied by the notation "Occidental, 25% off, special order when customer chooses fabric." Next to that language she drew a smiling face (), something that she frequently used when leaving notes for her fellow salespersons who called her "smiley."

A month later Dr. Byer returned to Interior Design and walked up to Seline, who didn't immediately recognize Dr. Byer. Dr. Byer reintroduced herself and said: "I'm sorry for taking longer than I expected, but I finally chose one of these two fabrics." Seline then said: "Good, but if you want to order the couch I'm afraid that it is going to be $1,600. I forgot that the sale price didn't apply to special order items. But we still have the couch on the floor and even though the sale is over I can still sell that one to you at the sale price." Dr. Byer responded: "I'm sorry that you forgot, but I expect to get the couch for $1,200 with the fabric that I've chosen. I passed up a similar couch for $1,300 at another store because I was going to get a couch here."

Seline refused. Dr. Byer left. She found the identical couch elsewhere, with the fabric she liked, and bought it for $1,500. She sued Interior Design in small claims court for breach of contract.

Who should prevail and why?