(dissenting).
I respectfully dissent. I am satisfied that the admitted facts in this case bring it within the decision of Slim Olson v. Winegar,1 and the principles mentioned therein as reflected in the authorities there cited.2 Concededly, it is difficult to distinguish the instant case from our recent case of B & R Supply v. Bringhurst,3 relied on by respondent, in which this author concurred, — in retrospect perhaps mistakenly. But there is a distinction, be it ever so humble. In that case, in applying “elemental principles of contract law” we said “the creation of a contract requires a meeting of the minds,” — which is a generally accepted principle in most cases,— except, perhaps, in cases involving liability by express or implied authority, ratification after the fact, and the like, where obviously there is no meeting of the minds of the principals to a contract, save for employment of the alter ego concept, which simply is a convenient fiction. The instant case is that type, where actually there is no meeting of the minds, but where there is a manifestation of mutual assent which appears to create consensual liability by virtue of a sort of es-toppel that says one is bound if ostensibly he represents something without affirmatively denying liability therefor,— that he will respond ex contractu, if one relies on his representations, either by express authority or by implication. I think this is that kind of case, — such as the Slim Olson case. I think' the latter should be dispositive here, else it expressly should be overruled.
One of the factors in the B & R case-opinion was the circumstance that “the conditions of the invoice [were] aptly described by the defendants as 'small inconspicuous print.’ ” In this statement we may have erred, since the small print in that case was not nearly as small as other-contracts universally used by finance companies, banks, appliance companies and others. The problem there really was not “fine print,” but “ostensible authority”, which is not necessarily destroyed by “fine print.” If it could be, then not only “ostensible” authority would not bind a principal, but by the same token the principal himself could relieve himself of liability by simply saying he did not read or deliberately ignored fine print. It is to-be noted, significantly, that in the instant case, involving, concededly, only a few invoices, two of which actually were signed *317by an officer of the company, the evidence shows the use of these invoices in sales by the plaintiff and purchases by the defendant in a continued business relationship over a period of two years. It is somewhat ridiculous to conclude that the purchaser-defendant’s officials did not read the so-called “fine print” at the very head of the invoice, — some of which was not as “fine” as asserted. It is also amazing to this writer that disclaiming liability for the attorney’s fee provision because nobody in authority bothered to read it or question its obvious implications over a two-year period falls squarely within the authorities cited in Slim Olson based on acquiescence in the terms of an agreement by silence. It is also interesting to note that on summary judgment on March 29, 1972, the trial court gave judgment for the meat delivered and accepted as per invoice ($5,576.19), together with interest for $223.00, which, according to the dates of the invoices and the prices charged to date of judgment (between four and five months) roughly was the interest provided in the so-called "small inconspicuous print,” which the defendant says it did not read, — and was thus immunized against its wording, — but which the trial court obviously read and enforced, —only later on to reverse himself and make the interest rate 6% instead of the 12% rate which he had adjudged. The switch, of course, was and had to be consonant with his later judgment relieving defendant of the fine print with respect to attorney’s fees since the 12% rate according to the fine print then would have infected not only the defendant, but also the trial judge. All this being so, — a complete disregard of the fine print as to interest and attorney’s fees, renders the entire language of the fine print paragraph unenforceable and void. This includes the parts about payment 1) “on the first Monday following the date of purchase,” 2) “legal costs,” 3) “expenses involved in the event legal action is necessary” for collection, and 4) payability at the place of business. Under the trial court’s rejection of the fine print and this Court’s affirmance, defendant would not have had to pay on the “Monday following purchase,” but could pay at his leisure, perhaps six months hence, since it did not read the fine print, didn’t authorize the Secretary or Treasurer to O.K. the price or make payment or anything else that did not happen to be to the liking of the President of defendant’s company that received and consumed the meat and then conveniently refused to pay for it, causing the seller to resort to an expensive court action to force payment of money, — which, according to his theory, he would not have to pay except by way of quantum valebant, — a price much lower than the invoice, — simply because he had not seen the invoices and had authorized no one to buy meat or to pay for it.
*318Upon further analysis of the B & R case, the only authority on which defendant here relies, the court gave judgment for attorney’s fees for amounts shown on invoices which the defendant personally had signed. My apology for having concurred in that case is apparent, and the fallacy that renders that case non-dispositive here, is that the trial court gave a partial judgment for attorney’s fees based on the fine print in those instances where the defendant himself had signed the invoices, reflecting a philosophy that is quite inconsistent with reason and good sense, to the effect that if you read the fine print you are stuck; if you don’t read it you’re not stuck, — so the way to avoid attorney’s fees or any other provision in the fine print, simply is to ignore it, permit your employees to sign delivery invoices on which are terms, that if undesirable, could be rejected, say you authorized them to sign for the delivery only but not for anything appearing on the invoices, such as weight, price, quality and the like, and you will not be responsible for any of those items, and you then can put the seller to proof dehors the invoice itself, and renege on even the delivery of goods itself by saying, for example, that your employee was not authorized to establish proof of delivery because that was reserved to the President of the corporation, who knew and saw nothing about the invoice, what was on it, or what his employee’s signature looked like.
. 122 Utah 80, 246 P.2d 608 (1952).
. Williston Contracts, Rev. ed., Sec. 90A, p. 257, et seq.; Contracts Restatement, sec. 70; Agency Restatement, sec. 94, p. 234; Moses v. McFarland, 119 Utah 602, 230 P.2d 571 (1951).
. Case No. 12805, this Court, 28 Utah 2d 442, 503 P.2d 1216 (1972).