Royal Brewing Company v. St. Louis Brewing Association

• Decision Date: 03 May 1915
• Citation: 176 S.W. 553,188 Mo.App. 673
• Parties: ROYAL BREWING COMPANY, Respondent, v. ST. LOUIS BREWING ASSOCIATION, Appellant
• Court: Kansas Court of Appeals

176 S.W. 553

188 Mo.App. 673

ROYAL BREWING COMPANY, Respondent, v. ST. LOUIS BREWING ASSOCIATION, Appellant

Court of Appeals of Missouri, Kansas City

May 3, 1915

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

Edw. C Kehr, M. C. Early and F. V. Kander for appellant.

(1) To create a contract by offer and acceptance the acceptance must be unequivocal, unconditional and in exact accordance with the offer. It must not vary from the offer either by way of omission, addition or alteration. The assent must be absolute and final. Scott v. Davis, 141 Mo. 213-25; Gaus v. Chicago L. Co., 115 Mo.App. 119; Batavia v Railroad, 126 Mo.App. 15-18; Sarran v Richards, 151 Mo.App. 656-60; Strange v Crowley, 91 Mo. 287-95; Robinson v. Railroad, 75 Mo. 498; Taylor v. Von Schrader, 107 Mo. 206-225; James and Sons v. Fruit I. & B. Co., 68 Mo.App. 207-13-16; Spencer v. Pike, 183 F. 894. (2) The acceptance of a proposal coupled with a modification is in law a rejection, and becomes in its modified form a new proposal, which requires acceptance in turn in order to constitute a contract. Shickle v. Chouteau, 10 Mo.App. 241-6, 84 Mo. 161-3; Egger v. Nesbit, 122 Mo. 667-74-8; Union Service Co. v. Drug Co., 148 Mo.App. 327-36-7; Brecheisen v. Coffey, 15 Mo.App. 80. (3) The effect of letters alleged to constitute a contract by corespondence is a question of law for the court, and a party is not entitled to have the question of whether a contract has been formed, and if so, on what terms, submitted to the jury. Union Service Co. v. Drug Co., 148 Mo.App. 328-37; Eagle Mill Co. v. Caven, 76 Mo.App. 458; Falls Wire Mfg. Co. v. Broderick, 12 Mo.App. 378; Telluride Power Co. v. Crane Co., 208 Ill. 70. (4) If plaintiff was not bound to return the empties defendant was not bound to accept them--in such case the contract was unilateral--that is, lacking in mutuality--and therefore void. Plaintiff has claimed only that it had the privilege to return empties, if it saw fit to do so. It does not contend that it was obligated to return any empties and therefore defendant was not bound to receive any. Iron and Rail Co. v. Railroad, 148 Mo.App. 173.

Harry L. Jacobs and I. J. Ringolsky for respondent.

OPINION

JOHNSON, J.

This is an action to recover damages in the sum of $ 3372.31, for breach of contract. A jury was waived and after hearing the evidence the court rendered judgment for plaintiff for $ 2358.90, and defendant appealed.

Plaintiff is a corporation operating a brewery at Weston and a branch office and sales department thereof at Kansas City. Seventy-five per cent of its capital stock is owned by the five Danciger brothers who are members of its board of directors which consists of seven members. These brothers are the proprietors of two other business establishments in Kansas City engaged in the liquor business, one of which is conducted under the name of Danciger Brothers, and the other under the trade name of Schiller Brothers. The chief business of plaintiff was to brew and bottle beer for sale in Kansas, Oklahoma and Texas, and it appears that the demand for its product exceeded the output of the brewery and bottling works at Weston and compelled plaintiff to arrange for the purchase of bottled beer from another brewery to supplement its own production. Accordingly plaintiff began negotiations on March 6, 1909, for such supply by writing a letter to the Klausman Brewing Company, the trade name of a branch brewery in St. Louis operated by defendant, for quotations "on bottle beer, pints and quarts in carload lots," and stating, in substance, that if satisfactory prices were offered plaintiff would order as needed from 75 to 150 carloads.

Under date of March 8, 1909, defendant answered "we will supply your wants under the following conditions (quoting prices.) We have no quart bottles, hence no price on same. All goods are sold F. O. B. cars St. Louis. We pay freight on return empties. We allow twenty-five cents per dozen for all bottles our brand returned in good condition, our count. . . . The above prices are for cash to accompany every order which is to include price of beer, cases, casks and bottles. No other allowances whatsoever will be made."

Plaintiff, on receipt of this letter, wrote defendant to send samples of the beer and asked if a better price could not be made "on empties" and casks if it were understood that no empties were to be returned and if defendant could ship as many as seven carloads of beer each week if such quantity were ordered by plaintiff. Defendant answered that samples would be sent, that no better price could be given and that seven carloads per week could be furnished if ordered.

The next letter of importance was written by defendant March 31 and contained a guarantee "that the price of beer made to you in letter of March 8, 1909, shall remain in force for one year from said date," and the agreement "that we will ship all orders within seven days of receipt of same provided we shall have the required amount of labels and decorated crowns on hand, which are to be furnished by you and paid for by us at the rate of twenty cents per gross."

On the following day, April 1st, plaintiff wrote defendant: "On Mr. Joseph Danciger's return to Kansas City, the directors of The Royal Brewing Co., took up the matter of buying beer from you. We accept your proposition as embodied in your letter of March 8, 1909, to us, and the guarantee of your manager, William Heil, given to our Mr. Joseph Danciger on March 31, 1909.

"We hereby agree to buy from you, pursuant to your letter of March 8, 1909, all such beer of the quality and kind mentioned in your letter to us of March 8th, which we shall need to fill our orders, over and above the output of our own brewery for the period of one year from date of your offer of March 8, 1909.

"Although you were unwilling to stipulate in writing as to packing and etc., we assume, of course, that this beer will be pasteurized, securely packed and in every way suitable for shipping."

April 7th, defendant replied: "Yours of the 1st to hand and noted. Our Main Office will not sign a contract, but the conversation had between Mr. Danciger and our Mr. Heil will be carried out. We are now awaiting your orders which will have our prompt and careful attention. Kindly let us know when we may expect to receive the initial order."

April 8th plaintiff answered: "Your recent letter has been received, and while we cannot say definitely at the present time when we can give you the initial order, we believe it will be in the near future, and from the present outlook, we think we can use quite a number of cars."

The reference in plaintiff's letter of April 1st to the guaranty "given to our Mr. Joseph Danciger on March 31, 1909" was to the guaranty stated in defendant's letter of the latter date. Point is made by counsel for defendant that this correspondence did not constitute a binding contract between the parties for the reason that defendant's letter of March 8th which contained its offer was not unconditionally accepted in plaintiff's letter of April 1st. But that position is not tenable since the subsequent letters of defendant dated April 7th and of plaintiff dated April 8th show conclusively that the minds of the parties did meet in mutual agreement. A contract thereby was created by the terms of which plaintiff agreed to order all the beer it would need in excess of its own production, and defendant agreed to fill all such orders on the terms stated in defendant's letter of March 8th, as modified in the subsequent correspondence. Under these terms defendant agreed to pay plaintiff twenty-five cents per dozen for all empty bottles returned by plaintiff which the latter received from defendant. We agree with defendant that "to create a contract by offer and acceptance the acceptance must be unequivocal, unconditional and in exact accordance with the offer. It must not vary from the offer either by way of omission, addition, or alteration. The assent must be absolute and final." [Scott v. Davis, 141 Mo. 213; Gaus v. Chicago Lumber Co., 115 Mo.App. 114, 92 S.W. 121; Batavia v. Railroad, 126 Mo.App. 13; Sarran v. Richards, 151 Mo.App. 656, 132 S.W. 285.]

If the negotiations between the parties had ended with plaintiff's letter of April 1, their status would have been that of a conditional acceptance of an offer of sale and, therefore, under the rule above stated, no contract of sale would have been established for the plain reason that the minds of the parties to the negotiations did not meet in mutual agreement, but where, as in the instant case, the offerer signifies his approval of the new conditions stated in the acceptance, there is a meeting of minds,...