Moulton v. Kershaw

• Decision Date: 08 January 1884
• Citation: 18 N.W. 172,59 Wis. 316
• Parties: MOULTON v. KERSHAW AND ANOTHER.
• Court: Wisconsin Supreme Court

59 Wis. 316

18 N.W. 172

MOULTON

v.KERSHAW AND ANOTHER.

Supreme Court of Wisconsin.

Filed January 8, 1884.

Appeal from circuit court, Milwaukee county.Jenkins, Winkler & Smith, for respondent, J. H. Moulton.

Finches, Lynde & Miller, for appellants, Charles J. Kershaw and another.

TAYLOR, J.

The complaint of the respondent alleges that the appellants were dealers in salt in the city of Milwaukee, including salt of the Michigan Salt Association; that the respondent was a dealer in salt in the city of La Crosse, and accustomed to buy salt in large quantities, which fact was known to the appellants; that on the nineteenth day of September, 1882, the appellants, at Milwaukee, wrote and posted to the respondent at La Crosse a letter, of which the following is a copy:

“MILWAUKEE, September 19, 1882.

J. H. Moulton, Esq., La Crosse, Wis.--DEAR SIR: In consequence of a rupture in the salt trade, we are authorized to offer Michigan fine salt, in full car-load lots of 80 to 95 bbls., delivered at your city, at 85c. per bbl., to be shipped per C. & N. W. R. R. Co. only. At this price it is a bargain, as the price in general remains unchanged. Shall be pleased to receive your order.

+----------------------------------+
                ¦Yours truly,¦C. J. KERSHAW & SON.”¦
                +----------------------------------+
                

The balance of the complaint reads as follows: “And this plaintiff alleges, upon information and belief, that said defendants did not send said letter and offer by authority of, or as agents of, the Michigan Salt Association, or any other party, but on their own responsibility. And the plaintiff further shows that he received said letter in due course of mail, to-wit, on the twentieth day of September, 1882, and that he, on that day, accepted the offer in said letter contained, to the amount of two thousand barrels of salt therein named, and immediately, and on said day, sent to said defendants at Milwaukee a message by telegraph, as follows:

‘LA CROSSE, September 20, 1882.

To C. J. Kershaw & Son, Milwaukee, Wis.: Your letter of yesterday, received and noted. You may ship me two thousand (2,000) barrels Michigan fine salt, as offered in your letter. Answer.

J. H. MOULTON.'

“That said telegraphic acceptance and order was duly received by said defendants on the twentieth day of September, 1882, aforesaid; that two thousand barrels of said salt was a reasonable quantity for this plaintiff to order in response to said offer, and not in excess of the amount which the defendants, from their knowledge of the business of the plaintiff, might reasonably expect him to order in response thereto.

That although said defendants received said acceptance and order of this plaintiff on said twentieth day of September, 1882, they attempted, on the twenty-first day of September, 1882, to withdraw the offer contained in their said letter of September 19, 1882, and did, on said twenty-first day of September, 1882, notify this plaintiff of the withdrawal of said offer on their part; that this plaintiff thereupon demanded of the defendants the delivery to him of two thousand barrels of Michigan fine salt, in accordance with the terms of said offer, accepted by this plaintiff as aforesaid, and offered to pay them therefor in accordance with said terms, and this plaintiff was ready to accept said two thousand barrels, and ready to pay therefor in accordance with said terms. Nevertheless, the defendants utterly refused to deliver the same, or any part thereof, by reason whereof this plaintiff sustained damage to the amount of eight hundred dollars.

Wherefore the plaintiff demands judgment against the defendants for the sum of eight hundred dollars, with interest from the twenty-first day of September, 1882, besides the costs of this action.”

To this complaint the appellants interposed a general demurrer. The circuit court overruled the demurrer, and from the order overruling the same the defendants appeal to this court.

The only question presented is whether the appellant's letter, and the telegram sent by the respondent in reply thereto, constitute a contract for the sale of 2,000 barrels of Michigan fine salt by the appellants to the respondent at the price named in such letter. We are very clear that no contract was perfected by the order telegraphed by the respondent in answer to appellants' letter. The learned counsel for the respondent clearly appreciated the necessity of putting a construction upon the letter which is not apparent on its face, and in their complaint have interpreted the letter to mean that the appellants by said letter made an express offer to sell the respondent, on the terms stated, such reasonable amount of salt as he might order, and as the appellants might reasonably expect him to order, in response thereto. If in order to entitle the plaintiff to recover in this action it is necessary to prove the allegations, then it seems clear to us that the writings between the parties do not show the contract. It is not insisted by the learned counsel for the respondent that any recovery can be had unless a proper construction of the letter and telegram constitute a binding contract between the parties. The alleged contract being for the sale and delivery of personal property of a value exceeding $50, is void by the statute of frauds, unless in writing. Section 2308, Rev. St....