Baird v. Pratt

• Decision Date: 09 November 1906
• Docket Number: 2,390.
• Citation: 148 F. 825
• Parties: BAIRD et al. v. PRATT et al.
• Court: U.S. Court of Appeals — Eighth Circuit

148 F. 825

BAIRD et al. v. PRATT et al.

No. 2,390.

United States Court of Appeals, Eighth Circuit.

November 9, 1906

W. H Kornegay, for plaintiffs in error.

Eugene B. Lawson and H. S. Montgomery, for defendants in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

ADAMS Circuit Judge.

This suit was founded on an instrument of writing executed by plaintiffs in error, who were defendants below, in their firm name of Baird Bros., and claimed by defendants in error, who were plaintiffs below, to be an executory contract for the purchase of merchandise. Defendants contend that the writing is a mere proposition to purchase, which required acceptance by plaintiffs before it became a contract, and that it was never accepted by them. The case was tried in the United States Court for the Northern District of the Indian Territory and resulted in a judgment in favor of plaintiffs which was afterwards appealed to the United States Court of Appeals in the Indian Territory, where it was affirmed, and is now brought here by writ of error. Other questions are presented in briefs of counsel, but the case will be effectually disposed of by deciding the contention just mentioned.

The instrument of writing is couched throughout in the language of an order or proposition to buy goods on terms stated in it, and no claim could be made that it was a contract of purchase, except for the fact that at the left hand of the signature of defendants' firm, signed at the bottom of the instrument, the signature of plaintiffs appears as follows: 'Walter Pratt & Co., by P. W. Bouldin, Salesman ' It is observed that there is no attendant explanatory word or words, like 'Witness,' or 'Accepted,' indicating the intent or purpose of the signature. The proof however, clearly shows that its purpose was not to accept the proposition of defendants. Bouldin was a traveling salesman for plaintiffs, who did business in Chicago under the firm name of Walter Pratt & Co., and was, at the time the order was signed, representing them in the Indian Territory. No claim is made in the proof that he was authorized to make binding contracts of sale for plaintiffs while on the road. On the contrary, his duty appears to have been to take orders and report them to his principals for their action. The testimony is undisputed and conclusive that the firm reserved the right to pass on the orders sent in by its traveling salesmen, and that such orders were not accepted until they reached defendants' place of business and were acted on by them. Walter I. Pratt, the managing partner of plaintiffs, testified that he had 'direction of the correspondence and shipping of goods and O.K.'ing of orders. ' In view of this proof the signature of plaintiffs' firm by its salesman at the bottom of the order cannot be regarded as an acceptance. It was probably a memorandum, showing what salesman took the order, or it was placed there to witness the genuineness of defendants' signature.

The usual course of business was pursued in this case. Bouldin secured the order in question on April 24, 1903. On April 25th he wired it to his house, making use for that purpose of a...