Barrett v. Book Cliff R. Co.

• Citation: 201 P. 1026,70 Colo. 440
• Decision Date: 03 October 1921
• Docket Number: 9796.
• Parties: BARRETT v. BOOK CLIFF R. CO.
• Court: Colorado Supreme Court

201 P. 1026

70 Colo. 440

BARRETT v. BOOK CLIFF R. CO.

No. 9796.

Supreme Court of Colorado

October 3, 1921

Rehearing Denied Dec. 5, 1921.

Department 2.

Error to District Court, City and County of Denver; Francis E Bouck, Judge.

Action by C. W. Barrett against the Book Cliff Railroad Company. Judgment for defendant, and plaintiff brings error.

Reversed.

Archibald A. Lee and Wm. H. Loughridge, both of Denver, for plaintiff in error.

Pershing Nye, Fry & Tallmadge, of Denver, for defendant in error.

TELLER J.

The plaintiff in error brought an action against the defendant in error to recover damages for an alleged breach of a contract for the sale of coal. The complaint set up a contract resulting from correspondence between the parties, and failure of the defendant to fill plaintiff's orders made under it. The answer denied that there was a contract.

The trial court held that the evidence did not establish a contract, and directed a verdict for the defendant.

We find from the record that the plaintiff in the action, under date of May 11, 1917, wrote to the defendant asking for a price on coal, and as to the number of cars that the defendant could ship. On May 22d the defendant wrote to the plaintiff the following letter:

'Gentlemen: Referring to your letter of May 11th to which I replied on May 16th, I now feel that I am in position to offer to ship you about 250 tons of coal per week at a price of $2.60 for nut and $2.85 for lump f. o. b. Grand Junction, beginning next week. This price is subject to change without notice.

'If you are interested, let me hear from you.

'Your truly,

D. B. Wright,

'General Manager.'

Under date of the 26th the plaintiff wrote in reply as follows:

'Dear Sir: Yours of the 22d inst. received and contents noted. Referring to the statement, that price is subject to change without notice, under the circumstances my customers demanded some assurance as to the length of time price quoted them would hold good, together with the probable tonnage they might expect. This required prompt action on my part, as it would delay matters using the mail, and wiring would be unsatisfactory. I trust you will appreciate my action in taking this matter up with your Mr. Fry, my sole idea being to expedite matters and arrive at a mutually beneficial arrangement.

'Upon Mr. Fry's assurance to me that it was his understanding that the prices you quote would be in effect until September 1st, 1917, also his statement that he would write you on this matter and clear up a slight misunderstanding, after having had this understanding with Mr. Fry, I wired my customers.

'I am this day in receipt of a telegram asking that one sample car of lump coal be shipped immediately. As previously stated, this being a sample car, on its preparation, its freedom from foreign matter, impurities, and a minimum quantity of car bottoms, will depend the future volume of business that can be secured and held in southern California.

'Please enter order, and ship one thirty-five ton or more (box car) lump coal to the order of C. W. Barrett, Los Angeles, Calif., via D. & R. G. care of the S. P., Ogden.

'I trust you will give this your personal attention, thereby assuring perfect preparation and prompt shipment.

'My plans now are to leave this coming week for San Francisco and Los Angeles, and if I do, will arrange to stop over in Grand Junction between trains and meet you and go out to the mine and see your coal. I will write

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