Benton Mercantile Co. v. Owensboro Wagon Co.

• Decision Date: 27 October 1921
• Docket Number: 4 Div. 941.
• Citation: 91 So. 784,207 Ala. 49
• Parties: BENTON MERCANTILE CO. v. OWENSBORO WAGON CO.
• Court: Alabama Supreme Court

91 So. 784

207 Ala. 49

BENTON MERCANTILE CO. v. OWENSBORO WAGON CO.

4 Div. 941.

Supreme Court of Alabama

October 27, 1921

Rehearing Denied Dec. 22, 1921.

Appeal from Circuit Court, Covington County; A. B. Foster, Judge.

Action by the Owensboro Wagon Company against the Benton Mercantile Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

E. O Baldwin, of Andalusia, for appellant.

A. R Powell and J. L. Murphy, both of Andalusia, for appellee.

MILLER J.

Owensboro Wagon Company files suit on common counts against Benton Mercantile Company for $166.30, balance due on a carload of wagons sold by plaintiff to the defendant. The case was tried by the court without a jury. There was judgment in favor of the plaintiff. This judgment rendered by the court, and the introduction of copies of telegrams and letters written and sent by plaintiff to the defendant are assigned as errors by the defendant. This case has been before this court before and is reported in 204 Ala. 415, 85 So. 723.

On September 8, 1917, plaintiff's salesman and defendant entered into an agreement subject to approval of plaintiff, to purchase 10 to 40 wagons to be shipped October 1, the defendant to furnish the specifications; terms, note due at six months net or in cash less a discount of 5 per cent., if paid within December 1st. It was approved by plaintiff. On September 27, 1917, defendant made out an order giving the specifications for the wagons, and on it, in lieu of "notes due at six months net or in cash less discount of 5 per cent., if paid within December 1st," as in original order, appears, "agree to settle for the above by February 1, 1918, net or five per cent., thirty and ninety days, notes due at less five per cent., one-third January 15, 1918, one-third April 1, 1918, one-third June 1, 1918," with blue pencil mark through said words, "less five per cent. one-third January 15, 1918, one-third April 1, 1918, one-third June 1, 1918." There was evidence that these words were in this contract when sent to plaintiff, and plaintiff ran blue pencil through them and wrote this in lieu of it," by February 1, 1918, net or five per cent. thirty or ninety days." There was also evidence that this contract contained no terms of sale. This new order contained a provision that it was subject to approval of plaintiff. This order was not approved by plaintiff. On October 3, 1917, plaintiff wrote defendant, "We cannot accept same," and the reason assigned were the new and different terms inserted in it from the original order. This letter gave prices and terms on which the car of wagons would be shipped. On October 18, 1917, defendant wired plaintiff as follows:

"Ship car wagons when may we expect them."

October 20, 1917, plaintiff replied by wire to defendant:

"Can ship car three to four weeks ten per cent. advance over order September 27, terms per letter October third. Answer."

To this telegram defendant replied by wire October 20, 1917:

"Ship car wagons early as possible."

The plaintiff shipped the car of wagons to the defendant. Under the 10 per cent. advance referred to in the telgram the order amounted to $1,797.11. Defendant paid plaintiff on March 4, 1918, $1,540.97; a discount of $89.55 was allowed leaving a balance of $166.30 due plaintiff by defendant.

An itemized account showing each item of the debits, the credits, and the balance due, $166.30, was filed by plaintiff with the complaint. It was verified by an affidavit of a competent witness before an authorized official, as the law requires. The complaint had these facts, and it being filed in court indorsed thereon as the statute directs. Its correctness, neither in whole nor in part, was denied by affidavit. It was competent testimony. It was introduced in evidence and considered by the court. Section 3970, Code 1907, as amended by Act September 17, 1915 (Gen. Acts 1915, p. 600).

The contract was not complete and binding on the parties, until all the terms and conditions were approved by them. Their minds must meet and concur on the entire subject-matter before the agreement is binding. As long as it is open to approval it is not binding. As long as it remained executory, it was subject to modification by mutual consent. Owensboro Wagon Co. v. Benton Merc. Co., 204 Ala. 415, 85 So. 723; Mobile Elec. Co. v. City of Mobile, 201 Ala. 607, 79 So. 39, L. R. A. 1918F, 667.

Under the conflicting evidence it appears to us, and no doubt the court below so decided, that the contract was not consummated until the telegrams were exchanged between the parties. Then there was a mutual agreement. Then the proposals were fully accepted. Rider v. Wood, 138 Ala. 235, 35 So. 46. The two orders, the telegrams, the copies of the letters written by each party and mailed to the other, were competent evidence, as each related or referred to the trade, the terms, the conditions, the specifications or the balance due. Each sheds some light on the contract or when it was...