Summers v. Hibbard, Spencer, Bartlett & Co.

• Citation: 38 N.E. 899,153 Ill. 102
• Court: Supreme Court of Illinois
• Decision Date: 20 October 1894
• Parties: SUMMERS et al. v. HIBBARD, SPENCER, BARTLETT & CO.

153 Ill. 102

38 N.E. 899

SUMMERS et al.

v.HIBBARD, SPENCER, BARTLETT & CO.¹

Supreme Court of Illinois.

Oct. 20, 1894.

Appeal from appellate court, First district.

Assumpsit by Hibbard, Spencer, Bartlett & Co., a corporation, against William Summers, Samuel Summers, and George Smith, doing business as Summers Bros. Plaintiff obtained judgment, which was affirmed by the appellate court. 50 Ill. App. 381. Defendants appeal. Affirmed.L. D. Thomas, for appellants.

Hamline Scott & Lord, for appellees.

Summers Bros. & Co., appellants, were manufacturers of sheet iron at Struthers, Ohio, and Hibbard, Spencer, Bartlett & Co., appellees, were jobbers in shelf hardware and light iron at Chicago. On March 1, 1889, appellees mailed to appellants a letter which was as follows:

‘Wm. G. Hibbard, Pres. and Treas. A. C. Bartlett, Vice-Pres. C. H. Conover, Secy. E. G. Clark, Cashier. Hibbard, Spencer, Bartlett & Co. [Cut of building here.] Lake and Wabash. Directors: Wm. G. Hibbard, A. C. Bartlett, James W. Nye, C. H. Conover, E. G. Clark. Chicago, 3/1/89. Summers Bros. & Co., Struthers, Ohio-Gentlemen: We are thinking of buying 5,000 to 10,000 bundles common sheet iron for delivery in equal quantities in the months of April, May, June, July, and August, and would be pleased to have your best price on same. We shall want all numbers from 16 to 27, but at least three-fourths of the lot 26 and 27. Hoping to hear from you soon with a low price, yours, truly, Hibbard, Spencer, Bartlett & Co.’

Appellants answered said letter as follows:

‘All sales subject to strikes and accidents. Summers Bros. & Co., Manufacturers of Box-Annealed Common and Refined Sheet Iron. Struthers, Ohio, Mch. 4, 1889. To Hibbard Spencer B. & Co., Chicago: Your favor of March 1st at hand. We make you the following offer:

+---------------------+
                ¦1,000 bdls. in March.¦
                +---------------------¦
                ¦1,000 bdls. in April.¦
                +---------------------¦
                ¦1,000 bdls. in May.  ¦
                +---------------------¦
                ¦1,000 bdls. in June. ¦
                +---------------------¦
                ¦500 bdls. in July.   ¦
                +---------------------¦
                ¦500 bdls. in August. ¦
                +---------------------¦
                ¦-----                ¦
                +---------------------¦
                ¦5,000                ¦
                +---------------------+
                

‘March and April as follows:

No. 27x24x101 at $2.80 deld. Chicago.

26x24x101 at $2.70 deld. Chicago.

16x18x20 at $2.60 deld. Chicago.

‘May, June, July, and August iron:

No. 27x24x101 at $2.85 deld. Chicago.

26x24x101 at $2.75 deld. Chicago.

16x18x20 at $2.65 deld. Chicago.

‘All 60 days, or 2% ten days from date of invoice.

‘Yours, respy., Summers Bros. & Co.’

On March 9th appellees replied under a like letter had as that in their first letter, as follows:

‘Chicago, 3/9/89. Summers Bros. & Co., Struthers, Ohio-Gentlemen: Your favor 4th is at hand. If you are willing to revise your ideas a little, we can trade with you. You may enter our order for 5,000 bdls. first-class com. sheet iron, as follows:

500 bdls. March delivery.

500 bdls. April delivery.

1,000 bdls. May delivery.

1,000 bdls. June delivery.

1,000 bdls. July delivery.

1,000 bdls. August delivery.

Prices to be: No. 22 & 24, $2.60.

25 & 26, $2.70.

27, $2.80.

‘Chicago, delivery, 60 days, or two per cent. cash in ten days.

‘If you accept our offer, you may enter us for March shipment 250 bdls. 26x24 x101 in., and 250 bdls. 27x24x101 in.

‘Awaiting your prompt reply, we are, very truly yours,

‘Hibbard, Spencer, Bartlett & Co.’

On March 11th appellants mailed to appellees an acceptance of their offer as follows:

‘All sales subject to strikes and accidents. Summers Bros. & Co., Manufacturers of Box-Annealed Common & Refined Sheet Iron. Struthers, Ohio, Mch. 11, 1889. To Hibbard, Spencer, B. & Co., Chicago: Your favor of 3/9 at hand.

‘Mr. Charles-Dear Sir: We accept your offer, 5,000 bdls. iron, 500 March, 500 April, 1,000 May, 1,000 June, 1,000 July, 1,000 August.

Prices: No. 27 at $2.80.

26 at 2.70.

24 at 2.60.

‘F. O. B. cars, Chicago, 2% ten days from date of invoice. We also enter your order, 250 bdls. 26x101 and 250 bdls. 27x101, Mch. shipment.

‘Respy., yours, Summers Bros. & Co.’

In the latter part of March and early part of April, 1889, there was further correspondence between the parties, which resulted in an addition to the original contract of 3,000 bundles of like sheet iron, at same figures, for July, Augst, and September delivery. Appellants delivered only 1,847 bundles of sheet iron under the first or original contract. They made no deliveries whatever under the second or additional contract. As an excuse for not making further deliveries, they, on July 24, 1889, claimed to appellees that the contracts were made ‘subject to strikes and accidents,’ and that they were prevented from filling the contracts in time by reason of breakages in their mills, and they still make on this appeal the same claims. There was a deficit in the May delivery of 727 bundles, in the June delivery of 639 bundles, and in the July delivery of 787 bundles. July 20th was the date of the last delivery. Appellees bought on the market, of other parties, on August 3, 1889, 1,000 bundles of sheet iron; on August 6th, 2,000 bundles; on August 19th, 1,500 bundles; and on August 24th, 1,000 bundles. These purchases were made in order to get iron to take the place of that which appellants had contracted to sell them. During the whole of September, and into October, the market price of sheet iron kept up, being at no time lower than the prices paid in the latter part of August. The total of the sheet iron delivered by appellants, added to that bought by appellees in the market, was 700 bundles less than the amount that appellants had contracted to beliver. This suit was brought by appellees to recover from appellants the amount that they paid for the sheet iron in excess of the contract price. They made no claim in respect to the 700 bundles. The amount of the excess, less deductions for unpaid shipments, was $1,546.61. The court instructed the jury to find for the appellees for that amount. From the final judgment rendered in the trial court there was an appeal to the appellate court, where that judgment was affirmed. The present appeal is from such judgment of affirmance.

BAKER, J. (after stating the facts).

It is insisted by appellants that the words, ‘All sales subject to strikes and accidents,’ printed at the top of their letter heads, must be considered in determining what the contract was, and that said words constituted an express condition that became a part of the contract between them and appellees. We do not understand the case. Under the date of March 1, 1889, appellees invited appellants to make them an offer of sale of a specified quantity of sheet iron, to be delivered in certain designated months. On March 4th appellants made them an offer as requested. On March 9th, in their letter of that date, appellees declined to accept the offer received, and at the same time they submitted for consideration an offer of their own,-an offer of purchase. This offer contained all the elements and terms of a precise and complete contract, and lacked only the assent thereto of the persons to whom it was addressed to make it such a contract. The offer was to buy a certain quantity of sheet iron, or certain sizes, to be delivered in Chicago in specified quantities and at designated times, and to pay therefor certain prices at certain stated times. And appellees concluded their proposal by saying, ‘If you accept our offer, you may enter us for March shipment 250 bundles,’ etc. The offer was absolute and positive, and without any conditions, qualifications, or exceptions whatever. On March 11th appellants wrote to appellees: ‘Your favor of March 9 at hand. We accept your offer.’ And they thereupon proceeded to restate in their letter the terms of the proposal made to them. These two letters made the contract between the parties. The two preceding letters seem to us to be wholly immaterial. The mere fact that appellantswrote their acceptance on a blank form for letters at the top of which were printed the words, ‘All sales subject to strikes and accidents,’ no more made those words a part of the contract than they made the words there printed, ‘Summers Bros. & Co., Manufacturers of Box-Annealed Common & Refined Sheet Iron,’ a part of the contract. The offer was absolute. The written acceptance, which they themselves wrote, was just as absolute. The printed words were not in the body of the letter, or referred to therein. The fact that they were printed at the head of their letter heads would not have the effect of preventing appellants from entering into an unconditional contract for sale. In Express Co. v. Pinckney, 29 Ill. 392, this court said: ‘In a case where the agreement is partly written and in part printed, the preference is always given to the written part.’ In that case the printed matter was in the body of the instrument, incorporated and...