B. T. Moran, Inc. v. First Security Corporation
| Decision Date | 03 August 1933 |
| Docket Number | 5141 |
| Citation | 82 Utah 316,24 P.2d 384 |
| Court | Utah Supreme Court |
| Parties | B. T. MORAN, Inc., v. FIRST SECURITY CORPORATION |
Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.
Action by B. T. Moran, Inc., against the First Security Corporation which filed a counterclaim. From a judgment dismissing plaintiff's complaint and awarding defendant damages on its counterclaim, plaintiff appeals.
Judgment dismissing plaintiff's complaint affirmed, and cause remanded for new trial on defendant's counterclaim.
R. J Hogan and E. M. Morrissey, both of Salt Lake City, for appellant.
Thatcher & Young, of Ogden, for respondent.
This is an action by plaintiff to recover $ 2,437.50, balance alleged to be due for goods manufactured, sold, and delivered to defendant pursuant to a written contract dated November 21, 1928. Defendant answered denying liability and filed a counterclaim wherein it sought to recover judgment against plaintiff for damages in the sum of $ 9,160 for breach of contract. The case was tried to the court without a jury. From a judgment in favor of defendant dismissing plaintiff's complaint and for damages in the sum of $ 2,000 on its counterclaim, plaintiff appeals and assigns numerous errors. For convenience we shall first treat the assignments of error to the dismissal of the complaint, and later take up the assignments directed to the judgment on the counterclaim.
The evidence discloses the following facts: Defendant is a Delaware holding corporation, owning practically all of the stock in a number of banks in Utah, Idaho, and Wyoming. Its principal place of business is Ogden, Utah. M. S. Eccles is its president, and E. G. Bennett is its vice president, manager, and purchasing agent. Plaintiff is an Illinois corporation engaged in the business of manufacturing and selling leather wallets and advertising matter consisting of form letters and cards designed to promote savings accounts in banks, and the furnishing of operators to manage such advertising campaigns. B. T. Moran is the president and manager of plaintiff corporation. Its sales agent throughout the Intermountain West at the time of the execution of this contract was E. A. Waugh. As a result of negotiations between Waugh and Bennett a proposal for contract was drawn by Waugh and signed by Bennett on the night of November 21, 1928, and sent by mail to the office of the company at Chicago for acceptance. It was, after receipt accepted by B. T. Moran at Chicago who wrote his name on the contract under the words "Accepted: B. T. Moran, Inc." It is conceded the order was not a contract until accepted by the corporation. One of the disputed points in the case is when the offer was accepted. The contract is as follows:
Manufacturer for an
Ship to First Security Corporation
City Ogden State of Utah.
Quan.
Description
Price each
24,500
Letters at per M
$ 15.00
144,000
Cards at per M
5.00
1,500
Men's Goat Skin Single Units
1.45
1,500
Men's Ostrich Grain Single Units
1.45
1,500
Men's Calf Skin Single Units
1.45
1,500
Women's Goat Skin Units
1.45
1,500
Women's Ostrich Grain Units
1.45
To be shipped by express F. O. B. Factory. Terms: Net 30 days.
Authorized Purchasing Agent V. P.
The contract as signed refers to a letter "per copy attached." There was a difference between the parties as to the identify of the letter referred to. Defendant claimed the letter was one written by Waugh to Bennett outlining the requirements of the several banks, which letter was admitted in evidence. Plaintiff's testimony was to the effect that a letter written by Waugh to B. T. Moran was the one referred to. This letter was identified as an exhibit, but was not admitted in evidence for the reason it was not sufficiently connected up with the defendant. No error is assigned to its exclusion. The wallets, letters, and cards referred to in the above-quoted contract were to be used by the defendant's banks at Logan, Rock Springs, Idaho Falls, Pocatello, Boise, and Nampa. The full order for the wallets was prepared and shipped, as were the letters and cards for all the banks except the one at Boise. A bill was submitted by plaintiff to defendant which included all these goods in the total sum of $ 11,597.50. The defendant promptly paid $ 9,160 but refused to pay the balance of $ 2,437.50 for wallets shipped to the Pacific National Bank at Boise. This action was commenced to recover such balance claimed to be due and payable. Defendant defends this action on the ground, as claimed by it, that it canceled the order so far as it affected all supplies for the Boise bank, including, not only letters and cards, but also wallets, and that notice of cancellation was given before its offer was accepted by plaintiff and before the contract became a complete executory contract. The evidence with respect to cancellation shows that the written order was signed by Bennett at about 8:30 p. m. on the evening of November 21st. On the same evening, and after the order was signed, Bennett had a conversation over the telephone with Mr. Tucker, cashier of defendant's bank at Boise, and learned from him that Waugh had not correctly reported Tucker's views with respect to the desirability of an advertising campaign on behalf of the Boise bank. Tucker claimed that he was not in favor of the campaign at all. It appears that the defendant had only recently acquired a controlling interest in the Pacific National Bank at Boise and was about to change its name so it was inadvisable to print any advertising matter until the change of name could be effected. Bennett testified he attempted but failed to get in touch with Mr. Waugh that evening, but that the next morning he sent a telegram addressed to him at the Hotel Utah in Salt Lake City as follows: That Waugh called Bennett on the telephone either the evening of the 22d or the morning of the 23d and stated he had received the telegram and wanted to know why the contract was canceled, and arranged for a meeting which was held on the evening of the 23d at the Hotel Utah in Salt Lake between Eccles, Bennett, and Waugh. At this meeting there was considerable conversation between the parties. It seems there had also been a misunderstanding with respect to the order for Rock Springs. Defendant claims the order for advertising matter for the Rock Springs bank was also canceled, but was later reinstated. The goods were shipped, used, and paid for, and the campaign conducted at Rock Springs. Since that portion of the contract is not now in question we shall make no further reference to it. Bennett testified that at this meeting he stated explicitly to Waugh that the order for Boise was canceled, and said, "Don't you have those supplies stamped or anything like that, because this is a cancellation of the order." That Waugh said it was not too late and he would fix the matter satisfactorily. No cancellation of the Boise order, so far as shown by the record, was transmitted to the office of plaintiff by Waugh, but merely directions to withhold printing of the letters and cards until further instructions. The wallets were made up and delivered to the Boise bank.
This is a law action tried to the court without a jury, and for that reason this court may not weigh the evidence and itself make findings. We may merely examine the record to determine whether there is sufficient competent evidence to support the findings of the trial court, and, if such is found, then it becomes our duty to sustain the findings. The evidence is voluminous, and we shall not attempt to set it out here even in abbreviated form. It is sufficient to say that on each of the disputed points there is evidence in the record which, as we view it, would support findings either in favor of the plaintiff or the defendant on the respective contentions made by each. Two question arise: First, did the defendant give notice of the cancellation of its order for wallets for the Boise bank; and, second, if such notice was in fact given was it given before acceptance of the order by the plaintiff at its Chicago office?
Mr Bennett testified directly that he did cancel the order both by telegram on November 22d and by conversation with Waugh on the evening of the 23d. There is undoubtedly sufficient evidence to show notice of cancellation. Whether it was given timely is a question of fact, and whether notice to Waugh was notice to his principal is a question of law. The court made finding that on or about November 22, 1928, and before the order had been accepted by plaintiff, the defendant withdrew and countermanded the order so far as the...
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