Barteldes Seed Co. v. Bennett-Sims Mill & Elevator Co.

• Decision Date: 29 November 1913
• Parties: BARTELDES SEED CO. v. BENNETT-SIMS MILL & ELEVATOR CO.
• Court: Texas Court of Appeals

161 S.W. 399

BARTELDES SEED CO. v. BENNETT-SIMS MILL & ELEVATOR CO.

Court of Civil Appeals of Texas. Amarillo.

November 29, 1913.

Appeal from Donley County Court; J. C. Killough, Judge.

Action by the Barteldes Seed Company against the Bennett-Sims Mill & Elevator Company. Judgment for defendant, and plaintiff appeals. Affirmed.

H. B. White, of Clarendon, for appellant. A. T. Cole, of Clarendon, for appellee.

HUFF, C. J.

The appellant, the Barteldes Seed Company, brought suit in the county court of Donley county, against the appellee, Bennett-Sims Mill & Elevator Company, for damages on an alleged breach of contract for the sum of $434, in refusing to deliver 35,000 pounds of German millet seed, in accordance with the terms theretofore entered into between the parties on April 19, 1912. The appellee denied liability, on the ground that in quoting the price of the seed they made a clerical error in their letter of $1 per hundredweight, which fact was known to appellant at the time it accepted the offer to sell. On April 17, 1912, the appellee wrote the following letter to appellant: "Under separate cover we are mailing you sample of German millet seed. We offer you delivered Oklahoma City $1.35 per cwt. in 10 oz. bags. There is 7 or 800 bu. of this lot. We want it to all go together." This letter appears to have been received by the appellant on the morning of the 19th of April, 1912, and at 8:20 a. m. that day they sent to appellee the following telegram: "We accept your letter seventeenth. Ship quick." The seed was not shipped. The appellee's evidence shows that the price quoted was by clerical error, made to read "$1.35 per cwt." instead of "$2.35 per cwt.," the then market price of millet seed per hundredweight. The trial court found as a fact that appellant was in a position to know, and did know, that the market price of the millet was $2.35 per hundredweight; that the appellee made a mistake in quoting the price, and intended to offer the sale of the seed at $2.35, instead of $1.35, per hundredweight, and by the judgment we must also impute to the finding of the court that the appellant knew that the appellee had made the mistake in quoting the price. The evidence introduced by appellant from its employé, is that during the month of April—up to the 17th of the month—the market price of that class of millet was from $1.40 to $1.60 per hundredweight; that on the 19th the price advanced $1.24 per hundredweight and he further testified that after this sudden rise the price remained about the same for some days thereafter. The retail price obtained by appellant on the 17th, the date of the letter, for seed, in lots weighing from 100 to 1,000 pounds, in Oklahoma City, ranged from $2.40 to $2.65 per hundredweight, and from the 20th to 22d of April ranged from $2.50 to $3.55 per hundredweight. Both parties were in the wholesale and retail grain and seed business, and their witnesses testified they knew the market value of the seed on the 17th of April. The evidence of appellee shows it was $2.35 per hundredweight. We think the evidence sufficient to show that the market price was, on the 17th of April, $2.35 per hundredweight, and that appellant knew that fact when it wired the acceptance, and must have known that appellee's quotation of the price was a clerical error.

Ordinarily, when the mistake is not mutual, courts will not relieve the party making it against his own negligence or inattention; but we think a different rule should apply when the evidence shows that the party accepting the mistaken offer knows of the mistake when the accepted it, and that he should not reap the benefit of the mistake to the evident injury of the other. We think fair dealing and good conscience should require an opportunity to correct the error, before trying to found a binding contract on it. Dorsey Printing Co. v. Gainesville Cotton O. M. & G. Co., 25 Tex. Civ. App. 456, 61 S. W. 556...