Fisher Iron & Steel Co. v. Elgin, J. & E. Ry. Co.

• Decision Date: 11 January 1939
• Docket Number: No. 6663.,6663.
• Citation: 101 F.2d 373
• Parties: FISHER IRON & STEEL CO. v. ELGIN, J. & E. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

101 F.2d 373 (1939)

FISHER IRON & STEEL CO. v. ELGIN, J. & E. RY. CO.

No. 6663.

Circuit Court of Appeals, Seventh Circuit.

January 11, 1939.

Paul E. Price, of Chicago, Ill., and A. L. Skolnik, of Milwaukee, Wis., for appellant.

Kemper K. Knapp, John H. Hershberger, and Harlan L. Hackbert, all of Chicago, Ill., for appellee.

Before EVANS, MAJOR, and TREANOR, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from an order of the District Court entered January 26, 1938, sustaining defendant's motion to dismiss plaintiff's amended complaint for failure to state a cause of action.

Insofar as is here material, the amended complaint alleged in substance that —

"(1) The defendant on June 17, 1937, by letter set forth as exhibit `A' to such amended complaint, solicited plaintiff's offer to purchase rail, angle bars, etc., from a seven mile stretch of defendant's abandoned railroad track.

"(2) The plaintiff, on June 21, 1937, by letter set forth as exhibit `B' to such amended complaint, made an offer to defendant to purchase such property.

"(3) Plaintiff's offer to purchase was accompanied by a certified check for One Thousand Dollars ($1,000.00) to the order of defendant.

"(4) Plaintiff's offer to purchase expressly stipulated that the defendant make final answer on such offer on or before June 28, 1937.

"(5) The defendant retained the certified check on June 28, 1937, and until August 17, 1937, when it returned such check to plaintiff accompanied with a letter attached as exhibit `C' to the complaint.

"(6) After June 28, 1937, the defendant `in divers ways, by its acts, statements and conduct respecting plaintiff's offer and by continuing to retain said check for an unreasonable length of time thereafter, accepted the offer to purchase made by plaintiff.'

"(7) Plaintiff relied upon such acceptance of its offer by defendant and made preparations accordingly and held itself in readiness to perform the terms of the agreement on its part to be performed.

"(8) Plaintiff, upon receiving its certified check from defendant, returned such check to defendant insisting that defendant perform its contract and that plaintiff was ready, willing and able to perform its part. Thereafter defendant again returned such check to plaintiff and signified its intention not to perform said agreement."

The only contested issue necessary for us to consider is whether the amended complaint states a cause of action. In doing so, consideration must be given to the exhibits referred to in the complaint, attached to and made a part of the same. Exhibit "A" is a letter dated June 17, 1937, directed by the defendant to the plaintiff, in substance suggesting to the plaintiff that defendant is the owner of an abandoned stretch of railroad track known as its Coal City branch, which it is desirous of selling, and that the plaintiff, if interested, make an inspection and purchase proposal. Exhibit "B" is a letter dated June 21, 1937, directed to defendant by the plaintiff in which it is stated that plaintiff has made an inspection of such railroad track and makes a proposal to purchase the same for the sum of $10,000, and to remove, without expense to the defendant, all parts and track accessories appertaining to the line of railroad, enclosing with such offer a certified check in the amount of $1,000 as evidence of good faith. The offer provided that the balance of the purchase price would be paid upon notification of an acceptance of the proposal. The letter stated that it was a dull season for the plaintiff and urged a reasonably quick decision in regard to the offer. The letter specifically stated "in view of the fact that we have tendered you our herein enclosed certified check we must ask that our offer be given some final answer on or before Monday, June 28, 1937." Exhibit "C" is a letter dated August 17, 1937, from the defendant to the plaintiff returning the $1,000 certified check.

As appears from its amended bill of complaint, it is the theory of the plaintiff that there was an implied acceptance of plaintiff's offer. The allegation in this respect is, "After June 28, 1937, the defendant in `divers ways, by its acts, statements and conduct respecting plaintiff's offer and by continuing to retain said...