Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co.

• Citation: 114 F. 77
• Decision Date: 10 March 1902
• Docket Number: 1,585.
• Parties: COLD BLAST TRANSP. CO. v. KANSAS CITY BOLT & NUT CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

114 F. 77

COLD BLAST TRANSP. CO. v. KANSAS CITY BOLT & NUT CO.

No. 1,585.

United States Court of Appeals, Eighth Circuit.

March 10, 1902

Syllabus by the Court.

A contract for the future delivery of personal property is void for want of consideration and mutuality if the quantity to be delivered is conditioned by the will, wish, or want of one of the parties, but it may be sustained if the quantity is ascertainable otherwise with reasonable certainty.

An accepted offer to furnish or deliver such articles of personal property as shall be needed, required, or consumed by the established business of the acceptor during a limited time is binding, and may be enforced, because it contains the implied agreement of the acceptor to purchase all the articles required by his business during this time from the party who makes the offer.

4 But an accepted offer to sell or deliver articles at specified prices during a limited time in such amounts or quantities as the acceptor may want or desire in his business, or without any statement of the amount or quantity, is without consideration and void, because the acceptor is not bound to want, desire, or take any.

Accepted orders for goods under such void contracts constitute sales of the goods thus ordered, on the terms of the contracts; but they do not validate the agreements as to articles which the one refuses to purchase or the other refuses to sell or deliver under the void contracts, because neither party is bound to take or deliver any amount or quantity of these articles thereunder.

The intention of parties cannot be imported into a contract where its terms are plain and unambiguous and they do not express it.

A verified account must be taken as true, against a denial and an offset pleaded in an unverified answer under Gen. St. Kan 1897, c. 95, Sec. 108.

This writ of error challenges a judgment on the pleadings in favor of the defendant in error, who was the plaintiff in the court below. For convenience, the plaintiff in error will be called the 'defendant,' and the defendant in error the 'plaintiff,' in this statement, and in the opinion which follows it. The plaintiff's petition stated a cause of action upon a verified account for $5,573.43. The defendant in its answer denied the averments of the petition and pleaded a counterclaim for $5,341.94 damages for the failure of the plaintiff to deliver to the defendant after June 1, 1899, certain manufactured articles which it ordered and needed, and which the defendant alleged that the plaintiff was bound to deliver under an alleged written contract, which it averred was made and broken in this way On October 27, 1898, the plaintiff sent to the defendant this letter:

'Kansas City, Mo., Oct. 27, '98.

'C. S. Ullman, Esq., purchasing Agent Cold Blast Transportation Co., S. & S. Packing Co.-- Dear Sir: We offer to deliver at your works, during six months from November 1st, 1898, the following materials at the prices states:

Bar iron, $1.20 flat delivered by car, $1.25 by wagon.

Soft steel bars, $1.25 car load, 1.30 by wagon.

Machine bolts, 80 and 10% discount.

U.S. Std. sq. nuts, $6.50 off.

U.S. Std. hex. nuts, 7.40 off.

70% off extras for tapping.

-- and will make in part payment No. 1 wrought scrap at $8.50 net ton, or arch bars and transoms at $10.50 net ton, or wrought iron car axles at $12.50 net ton, delivered your works; the quantity of scrap to be taken not to exceed the weight of materials sold to you.

'Yours truly,

R. C. Howes, Secy.

'With option of renewal for 6 months from June 1st, 1899.

'The K. C. Bolt & Nut Co., 'R. C. Howes, Sec'y.

On receipt of the proposition contained in this letter the defendant accepted it; and between November 1, 1898, and June 1, 1899, it ordered, the plaintiff delivered and the defendant paid for, nuts, bolts, and bars of the character specified in the letter, under the terms and at the prices there stated. Before June 1, 1899, the defendant notified the plaintiff that it exercised its option to renew the contract evidenced by the letter and acceptance. Between June 1, 1899, and December 1, 1899, the defendant ordered of the plaintiff nuts, bolts, and bars of the character described in the letter, which it needed in its business, which the plaintiff refused to deliver, and which the defendant was forced to purchase at others at prices which, in the aggregate, exceeded those specified in the alleged contract between the parties by $5,341.94. In addition to the counterclaim, which has been stated, the defendant pleaded an offset of $2,727.18, founded on the alleged fact that the plaintiff had charged that amount in excess of the prices specified in the alleged contract for nuts, bolts, and bars which it had furnished to the defendant on its orders between June 1, 1899, and December 1, 1899. The answer of the defendant was not verified. There was a reply to it. But upon this review of a judgment upon the pleadings against the defendant the averments of the reply become immaterial, because the allegations of the answer stand admitted, and those of the reply which assert new matter are denied. The only question for consideration is whether the answer stated any legal defense, counterclaim, or offset to the cause of action pleaded by the plaintiff.

N. H. Loomis, R. W. Blair, and O. L. Miller, for plaintiff in error.

W. Littlefield, D. S. Alford, and Ord Clingman, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The main question in this case is whether or not the answer states a legal counterclaim. The basis of this counterclaim is that the plaintiff failed to deliver nuts, bolts, and bars between June 1, 1899, and December 1, 1899, under the alleged renewal of the so-called contract of October 27, 1898. This supposed contract consisted of a written offer to deliver manufactured articles in unnamed quantities at certain specific prices at any time between October 27, 1898, and June 1, 1899, and the acceptance of that offer, without more. The answer contains no averment that either the plaintiff or the defendant paid any consideration or performed any act to induce the contract, except the remitting of the offer by the plaintiff, and the sending of its acceptance by the defendant. There was therefore in the inception of this alleged agreement no consideration for the promise of either of the parties to it, except the promise of the other. Neither the letter nor the acceptance names any quantity or amount of the articles specified that is to be delivered or received under it. The plaintiff does not agree to deliver, nor does the defendant contract to receive the writings. A promise is a good consideration for a promise. But no promise constitutes such a consideration which is not obligatory upon the party promising. It must bind the promisor, so that the promisee may maintain an action for its breach, or it is without legal effect and void. A promise to furnish, deliver, or receive specified articles at certain prices, without any agreement to order or to accept any amounts or quantities of the articles, is without binding force or effect, because neither party is thereby bound to deliver or to accept any quantity or amount whatever. Such promises are void, because they lack one of the essential elements of an agreement,-- certainty in the thing to be done. Contracts for the future supply during a limited time of articles which shall be required or needed or consumed by an established business, or used in the operation of certain steamships or other machinery, are no exceptions to this principle, because they fall under the rule, 'Id certum est quod certum reddi potest. ' But an accepted promise to furnish goods, merchandise, or other property, at certain prices, during a limited time, in such quantities as the acceptor shall require or want in his business, is without consideration and void, because the acceptor is not bound thereby to require or take any articles whatever under the supposed agreement. The line of demarkation between valid and invalid contracts here runs between the requirements of machinery, or of an established business, and the wants, desires, or requirements of the tentative vendee; and that because the former are either reasonably certain, or may be made so by evidence, while the latter are conditioned by the will of the tentative vendee alone, and are both uncertain and capable of infinite variation.

It is however, contended that, even if this alleged contract was void in its inception, it became valid and binding upon the parties when the defendant ordered, and the plaintiff delivered and received payment for, a large quantity of the manufactured articles at the prices and in accordance with the terms of the letter of October 27, 1898. But the fatal defect in the alleged contract was that the plaintiff was not bound to deliver, nor the defendant to take and pay for, any specific quantity of the offered articles. As to all undelivered articles...