54 N.W. 50 (Mich. 1892), Austrian v. Springer

Citation:54 N.W. 50, 94 Mich. 343
Opinion Judge:McGRATH, C.J.
Party Name:AUSTRIAN et al. v. SPRINGER.
Attorney:[94 Mich. 345] John T. Miller and Taggart, Wolcott & Ganson, for appellant. Stuart & Knappen, for appellees.
Case Date:December 23, 1892
Court:Supreme Court of Michigan

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54 N.W. 50 (Mich. 1892)

94 Mich. 343




Supreme Court of Michigan

December 23, 1892

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action bye Leo Austrian & Co. against Nathan Springer for failure to deliver goods contracted to be sold by defendant to plaintiffs. There was a verdict in plaintiffs' favor, and defendant brings error. Affirmed.

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[94 Mich. 345] John T. Miller and Taggart, Wolcott & Ganson, for appellant.

Stuart & Knappen, for appellees.


Plaintiffs are manufacturers of furniture, at Chicago, Ill., and defendant is a manufacturer of glass at Fuerth, Bavaria. On the 21st of March, 1890, one Frank O. Fitton called at plaintiffs' office; gave to plaintiffs' manager a card as agent of defendant; "said he came to sell me German looking-glass plates for importation; that he was selling for defendant,[94 Mich. 346] -and quoted prices;" and after some negotiations plaintiffs signed a written order drawn up by Fitton, which is as follows: "[Letter heading of Leo Austrian & Co.] Chicago, March 21, 1890. Nathan Springer, Fuerth, Bavaria-Dear Sir: Please enter our order for following German looking-glass plates; same to be shipped as soon as possible,-not later

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than May 15th,-and f. o. b. Chicago; freight to be prepaid to New York, and duty and freight from New York to be paid by consignee, and deducted from invoice. [List given.] Terms and discount: 60-10-2 1/2 on plain; 60-10-5-2 1/2 on beveled. The size 10 1/2 by 17, beveled, being quoted at net 37 1/2 cents, f. o. b. Chicago. Net 60 and 90 days. Leo Austrian & Co." Fitton drew up, signed, and delivered to plaintiffs, the following: "[Letter head of Leo Austrian & Co.] Chicago, March 21, 1890. Ordered from Nathan Springer, Fuerth, Bavaria, following German mirrors, to be shipped soon as possible,-not later than May 15. Terms, f. o. b. Chicago. Net 60 and 90 days. [List of glass, prices, terms, and discounts, same as in order signed by plaintiffs.] Frank O. Fitton, Agent." Fitton said he would accept the order. The discounts were from list prices. Plaintiffs had a price list, on which Fitton gave the discounts. The defendant did not deliver the goods. About May 1, 1890, plaintiffs received from defendant the following letter: "[Letter head of N. Springer.] Fuerth, Bavaria, April 15, 1890. Mess. Leo Austrian & Co., Chicago, Ill.-Gentlemen: Your valued order March 21st, duly to hand, and regret not to be able to execute it in the time specified. Hoping to hear from you later, I remain, truly yours, N. Springer." [94 Mich. 347] Leo Austrian says: "Upon receipt of that letter, I wrote to defendant. I suppose my letter was sent out of the office as all the mail is. The letter copy book was accidentally destroyed. Up to the 1st day of July, I expected that the order would be filled. On June 28, 1890, I placed an order in New York. They would give me no price at the time, but the order was placed subject to July prices." This suit is brought to recover the difference between the prices named in the order given to Fitton and the prices paid. Plaintiffs recovered, and defendant appeals.

The first question raised is that the evidence fails to show a contract between the parties: (1) The order signed by plaintiffs and the paper signed by Fitton do not constitute a contract; and (2) it does not appear in evidence that Fitton had authority to make a binding contract. These two propositions practically resolve themselves into one; for, if Fitton had authority to bind defendant, the procurement and receipt of the order was sufficient, in itself, to create a contract. Kessler v. Smith, (Minn.) 44 N.W. 794. In that case the order was solicited at St. Paul, Minn., by one of the firm, and was addressed to the firm at New York. In Heffron v. Armsby, 61 Mich. 505, 28 N.W. 672, a memorandum of sale was signed by the purchaser only, and delivered to the soliciting agent. It was held that, if the...

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