Boeckeler Lumber Co. v. Cherokee Realty Co.
| Decision Date | 23 February 1909 |
| Citation | 135 Mo. App. 708,116 S.W. 452 |
| Parties | BOECKELER LUMBER CO. v. CHEROKEE REALTY CO. et al. |
| Court | Missouri Court of Appeals |
SALES (§ 36)—ASSENT—MISTAKE.
Defendant realty company, desiring to construct a house on certain land, furnished plaintiff a list of lumber desired, showing the number of pieces of each kind, and requested a lump bid for the whole list, without reference to the quantity of feet in each item, or the prices of the different kinds of lumber designated. Plaintiff carried out the number of feet in each item, and, on a different sheet of paper not submitted to defendant, figured the amounts and wrote on the bid submitted an offer to furnish the entire list for $1,960. Plaintiff, in making an extension opposite one of the items, computed 2,400 feet in 1,800 pieces of 2"×4"×20', whereas in fact there was 24,000 feet, making a difference in plaintiff's bid, but for the mistake, of $410.40. Defendant company, not knowing of the mistake, accepted the bid, which was the lowest received, after which the lumber was furnished and used in the building before the mistake was called to defendant's attention. Held, that a provision in the bid that "errors in extension and footing are subject to correction" did not constitute an agreement for the correction of an error in the total price of some item, or in adding all the totals of prices; and that, since the mistake was not mutual, and the parties could not be put in statu quo, plaintiff was not entitled to relief by reason thereof, in an action of assumpsit.
Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.
Action by the Boeckeler Lumber Company against the Cherokee Realty Company and others. Plaintiff obtained judgment for less than the relief demanded, and appeals. Affirmed.
Appellant company seeks a lien against a lot and building in which respondents are interested. Appellant, a dealer in lumber, sold to the Cherokee Realty Company, then the owner of the lot, and intending to build on it, a bill of lumber to be used in the construction of the building. The other respondents obtained their interests after construction work had begun, and subject to a lien for appellant's demand. The Cherokee Realty Company was controlled by Herbert A. Vrooman. Vrooman had built other houses in St. Louis, and his method of buying lumber for a house he meant to build was to have his chief carpenter make a list of the pieces of lumber of the various kinds he would need for the building, and submit copies of this list to concerns which sold lumber for competitive bids for the entire order at a round price. That method was pursued in the instance of the building on which the lien is sought. Vrooman's carpenter prepared a list of the lumber needed for said building, which list was composed of 25 or more items, and each item contained the requisite number of pieces of lumber of given dimensions. For instance, 60 pieces 2"×2"×21', 116 pieces 2"×16"×20', and so on. The list stated nothing concerning the number of hundreds or thousands of feet of lumber there would be in each item, but when the dealers made their estimates from the list of the lump sum for which they would furnish the lumber called for, their practice was to extend opposite each item the number of thousand feet required to fill said item. This was done by the lumbermen for their own information, and because lumber was valued and sold by the thousand square or cubic feet. Not only would they extend opposite each item the number of feet of lumber called for, but the price of all the pieces mentioned in the item at so much per thousand feet. By adding the column of prices thus formed, a dealer would ascertain the sum for which he would be willing to furnish the list of lumber submitted by Vrooman, who requested a lump bid for the total list, and paid no attention to the quantity of feet in each item or the prices of the different kinds of lumber designated in the several items. The lumber dealers prepared their bids in substantially the following form, which is a copy of appellant's estimate or bid on the occasion in question:
—OFFICE OF— | Items O. K.
BOECKELER LUMBER CO.
|
Manufacturer and Dealers in |
LUMBER, LATH, SHINGLES, PICKETS, ETC. |
BRANCH AND HALL STS. | Feet O. K.
Phones: Bell, Tyler 740, 741, 2651 |
Kinloch, Central 4066 |
EASTON AVE. AND SARAH ST. |
Phones: Bell, Lindell 924 |
Kinloch, Delmar 1707 | Exten. O. K.
14th ST. NORTH OF CASS AVE. |
Phones: Bell, Tyler 291 |
Kinloch, Central 1755 |
EASTON AVE. AND WABASH | Contractor
RAILROAD. |
Phones: Bell, Forest 5357 |
Kinloch, Delmar 705 |
St. Louis, Mo., 6-7, 1905. |
Mr. H. A. Vrooman Realty Co., |
822 Chestnut St. | Owner
Please find below our ESTIMATE. |
Delivered to Building of ...................... |
At Delmar and Union |
|
Perforated Line. |
|
CONDITIONS—
This proposal is based on the articles as specified. | Location .............
Errors in extension and footing are subject to correction. The latest |
Grading and Classification Rules and Regulations to govern this contract. |
Lumber and materials to be returned only by special agreement. |
Payments in cash to be made from time to time on amount of respective | Loan .................
deliveries equal to eighty per cent (80) thereof, balance when |
all material is delivered; privilege reserved to cancel contract in default |
of payments as stipulated. Deliveries subject to delays caused |
by strikes, accidents, fire, the elements or other causes beyond our |
control. | Handled By ...........
THIS ESTIMATE HOLDS GOOD IF ACCEPTED |
WITHIN ......... DAYS FROM DATE. |
Pieces Size Length Feet| |
60 2 12 22 2640| |
100 2 12 20 4000| | 22 58.08
20 2 12 18 720| | 20
20 2 12 16 640| | 20 94.40
45 2 16 22 2640| | 19 12.16
116 2 16 20 6186| | 25 66.00
40 2 16 18 1920| | 24
30 2 16 16 1280| | 24
20 2 10 24 800| | 24 225.26
60 2 10 22 2200| | 21½
275 2 10 20 9167> No. 1 Y P | 21½ 64.50
120 2 10 18 3600| | 20½ 187.92
90 2 10 16 2400| | 20 72.00
10 2 8 24 320| | 19
170 2 8 22 4986| | 19
300 2 8 20 8000| | 19
150 2 8 18 3600| | 19
30 2 8 16 640| | 19 366.81
22 4 6 10 440| | 18 11.52
1800 2 4 20 2400| | 19
200 3 4 12 2400| | 19 53.96
7000 Lin 1×3 Y P Bridging | 18 43.20
15000 Lin 1×2 Grounds Y P | 4½ 31.50
1 6 25500 No. 2 Y P fence | 3 45.00
1 10 14000 Sheathing No. 2 Y P Bds | 16
$1960.00 Nineteen Hundred & Sixty Dollars. | 16 632.00
BOECKELER LBR. Co., | ___ _______
W. L. Boeckeler. |
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Boeckler Lumber Company v. Cherokee Realty Company
... ... designated in the several items. The lumber dealers prepared ... their bids in substantially the following form, which is a ... copy of appellant's estimate or bid on the occasion in ... question: ... -- OFFICE OF-- ... Items O. K ... BOECKELER LUMBER CO ... Manufacturer and Dealer in ... LUMBER, LATH, SHINGLES, PICKETS, ETC ... BRANCH AND HALL STS ... Phones: Bell, Tyler 740 741, 2651 ... Feet O. K ... Kinloch, Central 4066 ... EASTON AVE. AND SARAH ST ... Phones: Bell, Lindell 924 ... Kinloch. Delmar 1707 ... 14th ST ... ...