Bauman v. McManus

• Decision Date: 05 January 1907
• Docket Number: 14,839
• Parties: J. P. BAUMAN et al., as Partners, etc., v. THOMAS MCMANUS et al., as Partners, etc
• Court: Kansas Supreme Court

89 P. 15

75 Kan. 106

J. P. BAUMAN et al., as Partners, etc., v. THOMAS MCMANUS et al., as Partners, etc

No. 14,839

Supreme Court of Kansas

January 5, 1907

Decided January, 1907.

Error from Harvey district court; PETER J. GALLE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. SALES--Order Given Traveling Salesman Subject to Approval--Withdrawal before Acceptance. Since in the absence of evidence to the contrary the presumption is that an order for goods taken by a commercial traveler is subject to approval by the house which he represents, and no contract results until such order is accepted, the proposed buyer has an unqualified right to withdraw such an order at any time before it is accepted.

2. SALES--Acceptance. Where an order for goods is taken by a traveling salesman and transmitted to his employer, who thereupon writes to the proposed buyer acknowledging the receipt of the order, thanking him for it, and saying that it will receive prompt and careful attention, such communication either is in itself an absolute acceptance of the order or is such an expression as may, in connection with an otherwise unexplained omission for a long time to make any further response, be deemed some evidence from which an acceptance may be inferred; if not conclusively an acceptance, it may be given that effect if the subsequent conduct of the parties indicates that they have each so treated it.

3. SALES--Conduct of the Parties--Evidence of Acceptance. Such a communication may be regarded as having been interpreted as an acceptance by both parties where it is followed by correspondence between them in which the buyer claims a right to change or cancel the order at any time in virtue of an asserted special agreement made with him by the agent who took it, and the seller denies the existence of such right and the making of such agreement.

4. SALES--Withdrawal of Order before Acceptance--Question for the Jury. The evidence examined and held not to show conclusively that an attempt was made to withdraw the order here involved before it had been unequivocally accepted.

Dale & Amidon, for plaintiffs in error.

Bowman & Bowman, for defendants in error.

OPINION

MASON, J.

J. P. Bauman & Sons, wholesale merchants, sued McManus Brothers upon an account for goods sold and delivered upon special order. A demurrer was sustained to the evidence of the plaintiffs and they prosecute error. The evidence tended to show that the defendants gave an order to a traveling salesman of the plaintiffs; that correspondence followed between the parties concerning the matter; and that the goods were shipped but not accepted. The ruling of the trial court was probably based upon the theory that the plaintiffs' evidence conclusively established that the order taken by their agent required acceptance by his principals before a binding contract could result, and that before it was so accepted the defendants countermanded it. The soundness of this theory is the chief, if not the only, question involved.

There is nothing in the record to suggest that the agent who took the order had or assumed to have any authority to bind the house which he represented beyond that implied from his being a commercial traveler in its employ. Therefore the court was justified in assuming that the order taken by him required acceptance by the plaintiffs before any enforceable agreement could result from it. (6 A. & E. Encycl. of L. 227; 8 Cyc. 334.) It follows that the defendants had a right to recall the order at any time before it was accepted. (9 Cyc. 284; L. A. Becker Co. v. Alvey [Ky.], 86 S.W. 974.) Therefore the inquiry narrows down to this: When did the plaintiffs accept it, and when, if ever, did the defendants undertake to withdraw it? The order was given November 11, 1903. Two days later the plaintiffs wrote to the defendants as follows:

"Your kind order through Mr. Schutz is duly to hand and will receive our prompt and careful attention. With thanks we are, Very truly,

J. P. BAUMAN & SONS."

If this constitutes an acceptance the trial court's ruling was wrong, for up to this time no withdrawal had been attempted. If the letter does not by itself show an acceptance of the order it may be that it is open to interpretation as such in the light of the subsequent conduct of the parties, or it possibly may be deemed one of a number of circumstances which collectively amounted to acceptance. Before undertaking to determine any of these questions it is expedient to exhibit the succeeding steps in the transaction. Nothing further was done until about January 22, 1904, when the defendants wrote a letter to the plaintiffs. Its exact contents are not shown, but a witness described it as one asking that the order be canceled. The remainder of the correspondence was as follows:

(February 1, 1904; plaintiffs to defendants.)

"Referring to your letter of the 22d ult., beg to say that we have communicated with our Mr. Schutz since the receipt of your letter and we have his assurance that the goods were sold to you without any privilege to cancel. We received the order early in November and have made up the same, the goods being about completed; and we will ship them by March 1, as per your original instructions."

(February 3, 1904; defendants to plaintiffs.)

"Yours to hand. All goods are bought under guaranteed price; if certain lines can be bettered we reserve the right to do so. If you ship you do so at your own risk."

(February 8, 1904; plaintiffs to defendants.)

"Replying to your letter of the 3d inst., beg to say, we must refer you again to our previous communication. Our goods are not sold under a price guaranty. We venture to say there is no garment concern in this country would do business that way. Our representative, Mr. Schutz, reports that he devoted considerable of his time to you when you made your purchase, and we manufactured your order exactly as given, and will ship the goods March 1, as per your original instructions."

(March 4, 1904; defendants to plaintiffs.)

"We herewith return bill of goods you are sending us contrary to our instructions. In shipping these goods you are doing so, as we notified you, at your own peril. We will not accept them now under any conditions. You may do just as you please about them, and besides this we do not wish any further correspondence in the matter."

(March 17, 1904; plaintiffs to defendants.)

"We have your letter of the 4th inst. returning our invoice, and in reply to same beg to say that when our invoice is due and payable we shall expect payment therefor. We want to state that we cannot afford to take an order to be made up specially for anybody, and accept cancelation over two months after the order is given, when the goods are practically ready for shipment. . . . We beg to reenclose invoice, and trust you will reconsider the matter."

Recurring now to the question of the legal effect of the letter of November 13, it may be said that while no express statement was therein made that the order would be filled the phraseology was such as would naturally lead the recipient to suppose that to be what the writer meant. In Rees v. Warwick, 2 B. & Ald. (Eng.) 113, it was held that where one was notified that a bill of exchange had been drawn upon him, and replied that it should "have attention," the phrase did not as a matter of law import the acceptance of the bill. But the ruling was based, as appears from the quotation from the opinion made in Bank v. Bank, 74 Kan. 606, 87 P. 746, largely upon considerations growing out of the fact that the transaction had to do with negotiable paper, on which account especial exactness of language was necessary and a strict construction of it proper. More nearly in point is Manier & Co. v. Appling, 112 Ala. 663, 20 So. 978, where it was held that no acceptance of an order such as was given in the present case resulted from an acknowledgment of its receipt coupled with the words "the same shall have prompt attention." On this matter the court said:

"Unless the words 'the same shall have prompt attention' are deflected from their natural, ordinary meaning, they cannot be construed into an acceptance of the proposal of the plaintiff, converting the two into a concluded or completed contract. The operative words are attention and prompt. The latter, when read in connection with the term of the proposal that the shoes should be shipped on the succeeding 15th of June, signifies, and was intended to signify, no more than that attention would be given in time to meet this term. If given within that time, it was as speedy as the nature or necessities of the transaction required. Promise to give the proposal attention was not a promise of acceptance; it was not an assent to it. It was no more than a courteous promise to give it consideration, and this we do not doubt is the sense in which it is generally, if not universally, employed in transactions of this character. Attention, according to Webster, signifies 'the act or state of attending or heeding,' and, further, 'notice; exclusive or special consideration.'

111 And of the meanings attached to it in the Century Dictionary are: 'Consideration; observant care; notice; as your letter has just arrived, and will receive early attention.' In the interpretation of all writings, whether contractual or not, the relation of the parties and the subject-matter must be considered.

"The words and phrases of the writing must be referred to the subject-matter and these relations, for they give rise to the occasion for their use or employment. The plaintiff was negotiating for the purchase of the shoes, stating the terms upon which he was willing to purchase. There was no legal duty resting upon ...