Arnold v. Cason

• Decision Date: 10 June 1902
• Citation: 69 S.W. 34,95 Mo. App. 426
• Parties: ARNOLD et al. v. CASON et al.
• Court: Missouri Court of Appeals

69 S.W. 34

95 Mo. A. 426

ARNOLD et al. v. CASON et al.

Court of Appeals at St. Louis, Missouri.

June 10, 1902.

CONTRACT OF SALE — ACCEPTANCE — WITHDRAWAL OF OFFER — AGREEMENT AS TO PRICE — BURDEN OF PROOF — APPEAL — EVIDENCE.

1. A material man quoted to a prospective contractor a certain price upon a list of building materials, and the contractor later gave an order to the material man for a list of lumber varying in description from the items specified in the first estimate, without otherwise accepting its terms. Held, that the giving of the order did not constitute an acceptance of the first proposal of the material man.

2. The acceptance of an offer for a contract must be absolute and in exact accordance with the terms of the offer, in order to bind the proposer.

3. An offer to sell articles at a given price may be withdrawn by so notifying the other party before the latter has accepted the offer.

4. A party to negotiations for a contract may signify his consent to a proposal by his conduct, but he cannot hold the other party until he defines his position in some distinct way, so as to create an obligation on his part.

5. An order to furnish materials for a building, in the absence of any agreement as to price, implies a promise to pay therefor the reasonable market value of the articles supplied in accordance with the order.

6. In a mechanic's lien suit, defendants admitted receiving the items of material in plaintiffs' account, and the reasonable value thereof, but claimed that a special contract at a given price had been made for part of the materials. Held, that the burden of proof was on defendants to establish the special contract.

7. On appeal the party in whose favor a verdict has been rendered is entitled to the benefit of every reasonable inference of fact which the evidence warrants to support the verdict.

8. Where plaintiffs' cause of action on an account is admitted, except as to a part thereof claimed to be covered by a special contract, and there is a total failure of proof to establish the special contract, a finding that there was such a contract will be set aside as unsupported by the evidence.

9. On the trial of an action on an account a party was allowed to testify that he "relied" upon an estimate of the other party as a proposal for a contract. Held, that said evidence was inadmissible.

(Syllabus by the Judge.)

Appeal from circuit court, Lewis county; Edwin R. McKee, Judge.

Action by James D. Arnold and another against Edward N. Cason and another. From a judgment for plaintiffs for an alleged insufficient amount, they appeal. Reversed.

J. E. Thompson and Blair & Marchand, for appellants. John C. Anderson and O. C. Clay, for respondents.

BARCLAY, J.

This appeal is from a judgment in favor of plaintiffs for $70.83. Plaintiffs appeal, claiming that the judgment should have been for about $100 more.

Plaintiffs are a firm of lumber dealers, as Arnold & Co., composed of Messrs. James D. Arnold and William L. Arnold, Jr. Defendants are Mr. Edward N. Cason and the Lewis County Exchange Bank. The action is to enforce payment of a claim for lumber which plaintiffs furnished to defendant Mr. Cason, and which was used in the construction of a building owned by his codefendant, the bank. The demand of plaintiffs is presented under the mechanic's lien law, and contemplates a judgment against the defendant Mr. Cason for the amount of his debt, and for a lien against the real estate of the defendant bank, upon which the improvement was made. Rev. St. 1899, § 4216. The case was tried with the aid of a jury.

The petition is in the ordinary form of a claim for a mechanic's lien. It sets out the items of material for which plaintiffs ask judgment, and a number of credits about which there is no dispute. The account charges 14 items of materials furnished on September 9, 1898, which form the focus of this litigation. The account also charges about 30 other similar items of various dates between September 21, 1898, and January 7, 1899, which need not be mentioned in detail. The actual controversy lies within a narrow compass. It arises in relation to the items recited in plaintiffs' petition as of date September 9, 1898. The particulars of these items have an important bearing on the result of this appeal. We insert them here as they appear in the petition:

                  1898
                September 9.  To  84-2×12-18 ft.  W. P.......... $43 85
                    "     "   "   62-2×14-20 ft.  Y. P..........  43 39
                    "     "   "   24-2×14-18 ft.   "  ..........  15 74
                    "     "   "   40-2× 8-18 ft.   "  ..........  14 40
                    "     "   "   40-2× 8-20 ft.   "  ..........  16 00
                    "     "   "   80-2×10-20 ft.   "  ..........  40 00
                    "     "   "   40-2× 6-12 ft.  W. P..........   5 76
                    "     "   "   50-2× 4-12 ft.   "  ..........   4 80
                    "     "   "  175-2× 4-10 ft.   "  ..........  14 02
                    "     "   "   30-2× 4-16 ft.   "  ..........   3 84
                    "     "   "  150-2× 4- 8 ft.   "  ..........   8 80
                    "     "   "   25-2× 6- 8 ft.   "  ..........   2 40
                    "     "   "   4500 ft. St. G. Y. P. flooring  67 50
                    "     "   "   2300 ft. fence flooring No. 2   29 90
                

The answer of defendants admits the incorporation of the bank, and that plaintiffs furnished defendant Cason the lumber and materials as set out in the petition, but it denies the indebtedness charged in so far as concerns the foregoing items only. That part of the answer which relates to the gist of the controversy admits that the prices recited in plaintiffs' petition for the items which we have copied above are correctly stated at $308; but the answer then avers that plaintiffs contracted and agreed to furnish defendant Cason "on or about the ____ day of September, A. D. 1898," the said lumber and materials mentioned and set out in the items of the petition quoted above, for the price and sum of $208. Defendants further allege that Mr. Cason gave the order to plaintiffs for said items of lumber and materials, relying upon said agreement of plaintiffs to furnish the same at the price of $208. Defendants aver a tender of the amount due when plaintiffs' bill was rendered, with interest and costs, upon the basis of the account which they set up. For reply, plaintiffs denied the new matter in the answer. The plaintiffs gave evidence tending to prove the account as set forth in their petition, and that the prices charged were the reasonable market value of the various items of materials supplied, as described in the petition, at the dates when the deliveries occurred. The defendants then took up their defense, the essence of which is that a special agreement was made by plaintiffs to furnish to Mr. Cason the group of items already recited, as of September 9, 1898, for the sum of $208. Mr. Cason testified that the defendant bank had issued proposals for bids for the construction of a bank building at Lewistown, Mo. He desired to make a bid for the construction of the building. One of the plaintiffs (Mr. William L. Arnold) was a member of the committee, representing the bank, having in charge the receiving of bids for that purpose, besides being a member of the plaintiff firm. The bids were to be considered September 1, 1898. Before making his bid to the bank, defendant Cason requested of the same Mr. Arnold an estimate of price on certain lumber which Mr. Cason described in a written memorandum which he then produced, and which was read in evidence as "Exhibit F," as follows (including in the right-hand column, however, figures made by Mr. Arnold at that time in response to Mr. Cason's request for an estimate of price):

                              Estimate by Arnold & Co
                 84-2×12-18 No. 1 R g h....................   3024
                 62-2×14-20 "      Y. P....................   2893
                 24-2×14-18 "        " ....................   1008
                 80-2× 8-18 "        " ....................   2067
                 80-2×10-20 "        " ....................   2667
                 40-2× 6-12 "      W. P....................    480
                 50-2× 4-12 "        " ....................    400
                175-2× 4-10 "        " ....................   1167
                 30-2× 4-16 "        " ....................    320
                150-2× 4- 8 "        " ..............8.00..    148.26
                4500 ft. St. Grain Y. P. flg
                2300 ft. No. 2 fence flg...................   $208.00
                

After Mr. Arnold had written the figures in the right-hand column, and the estimate of price at the bottom ($208), Mr. Cason took the paper and retained it. The letting was not made on that day, but about four or five days thereafter the contract for the construction of the building was awarded to Mr. Cason. Without any other notice or expression of purpose on his part, Mr. Cason on September 9, 1898, sent to plaintiffs an order for lumber as follows:

                               Canton, Mo., September 9th, 1898
                  Mr. J. D. Arnold & Co., Lewistown, Mo. — Dear
                Sirs: The list of lumber is as follows
                 84-2×12-18  No. 1  White Pine.................
                 62-2×14-20  "      Yellow Pine................
                 24-2×14-18  "         "    "  ................
                 40-2× 8-18  "         "    "  ................
                 40-2× 8-20  "         "    "  ................
                 80-2×10-20  "         "    "  ................
                 40-2× 6-12  "       White Pine edged..........
                 50-2× 4-12  "         "    "    "   ..........
                175-2× 4-10  "         "    "    "   ..........
                 30-2× 4-16  "         "    "    "   ..........
                150-2× 4- 8  "         "    "    "   ..........
                 25-2× 6- 8  "         "    "    "   ..........
                4500 ft. St. Grain Y. P. flooring..............
                2300 ft. No. 2 fence flooring..................
                                    Yours, truly,     Ed. N. Cason.
                

Plaintiffs furnished the lumber immediately in accordance with this order, which, it will be noticed, is identical with the 14 items of plaintiffs' account, but varies from the estimate, Exhibit F. The claim of defendants is that the estimate contained in the memorandum called "Exhibit F" was accepted by Cason's order last above quoted. Mr. Cason's testimony is that, when Exhibit F was handed to him, Mr....