Boston Lumber Co. v. Pendleton Bros., Inc.

• Decision Date: 30 June 1925
• Citation: 102 Conn. 626,129 A. 782
• Court: Connecticut Supreme Court
• Parties: BOSTON LUMBER CO. v. PENDLETON BROS., INC.

129 A. 782

102 Conn. 626

BOSTON LUMBER CO. v. PENDLETON BROS., INC.

Supreme Court of Errors of Connecticut.

June 30, 1925

Appeal from Superior Court, New London County; Isaac Wolfe, Judge.

Action by the Boston Lumber Company against Pendleton Bros., Inc. Judgment for plaintiff, and defendant appeals. No error.

Herbert W. Rathbun and Henry Harris. both of Westerly, R. I for appellant.

Lawrence A. Howard, of Hartford, and William F. Mooers, of Boston, Mass., for appellee.

MALTBIE, J.

The defendant purchased of the plaintiff in November or December, 1919, 90,000 feet of lumber, and, a little later, an additional 45,000 feet; this lumber consisting of timbers required to average 60 feet in length, and in its other dimensions to measure, some 6 inches by 16, some 6 inches by 14, some 12 inches by 20, and some 6 inches by 12. Three shipments, consisting in all of about 87,000 feet, were received and paid for by the defendant. Two other shipments were refused by the defendant when they arrived at its yards on the ground that delivery was not made within the time required by the contract of purchase. The first issue arising upon the record is concerned with the terms of the contract.

The transaction originated in an inquiry by the defendant as to a possible purchase and a reply by the plaintiff quoting prices. The defendant accepted the plaintiff's offer by telephone, and then wrote a letter in confirmation, in which, however, it added a requirement that certain of the timbers be planed, and stated that--

" We desire the 6x14, and 6x16 for prompt shipment and trust you can get one or two carloads started, as the only reason we are buying it is to get it quickly, otherwise we would have to cut it out of some materials we have at Mystic."

The plaintiff replied that it had the order, and had forwarded it to the mill, asking that the timbers be planed as required, and stated that the plaintiff was not sure that the work would be done without charge, but would advise the defendant if any charge was to be made. The trial court finds that there was inclosed in the envelope with this reply a " sales slip" stating the terms of the sale. As the defendant points out, the only positive testimony to the effect that it was sent, that of the president of the plaintiff, seems to have been based rather upon the customary usage of his company to take that course than upon personal knowledge, yet we cannot find error in the conclusion of the trial court. The " sales slip" was indubitably made, and, that being so, the custom of the office to send a duplicate to the customer was some evidence that one was sent in this case (Moffitt v. Connecticut Co., 86 Conn. 527, 86 A. 16; State v. Williams, 90 Conn. 126, 130, 96 A. 370), and this the trial court might hold sufficient to prevail over the testimony of the defendant's treasurer that he had never seen such a " sales slip" and that none could be found in the files of the company. The " sales slip" gave the name and address of the defendant as purchaser, and in answer to the query " ship to," it stated, " destination later," and to the following, " when," it stated, " rush," and it stated the details as to amount, sizes, and kinds of lumber, with indications as to the requirement of the defendant that it be planed, and was signed with the name of the plaintiff. In addition, it had printed upon it, in small but bold-face type, two collateral provisions, one of which, at the foot of the slip and below plaintiff's signature, was as follows:

" All agreements contingent upon fires, strikes, delays of carriers, and other delays unavoidable or beyond our control."

Shortly after the sending of the letter containing the " sales slip," the plaintiff sent a telegram inquiring as to the destination to which the lumber was to be shipped, and the defendant replied, directing shipment to Mystic, Conn.

The conclusion of the trial court was that this " sales slip" was incorporated in and became a part of the contract of purchase, so that its terms and conditions were binding upon the parties. The defendant contends, however, that there had been an offer and acceptance sufficient to constitute a complete contract before the letter containing the " sales slip" was ever sent, and so it could not affect the rights of the parties as they had already become fixed. The soundness of this contention must be determined upon the basis of the writings passing between the parties and the intent manifested by them, so that there is no occasion to consider the oral testimony indicating the understanding of the situation in the mind of the plaintiff's president, quoted in defendant's brief. The question is one of law, not of fact. Lindsay v. Phillips, 95 Conn. 96, 100, 111 A. 176; Atlantic Terra Cotta Co. v. Chesapeake Terra Cotta Co., 96 Conn. 88, 113 A. 156.

We must hold that the conclusion of the trial court was correct. The defendant's letter, confirming its acceptance of the plaintiff's offer to sell at certain prices, imported two new elements into the situation, the requirement that a part of the lumber be planed, and a request for its " prompt shipment" ; and the importance of the latter element is apparent from the fact that the defense is largely based upon it. The plaintiff's reply in terms merely acknowledged receipt of the order and then addressed itself to the requirement that the lumber be planed, evidently in order to make clear its position as to the possibility of a mill charge for that work; but upon the " sales slip" the plaintiff set out in their entirety the terms of the bargain as it intended that they should stand. When, with that in its possession, the defendant sent shipping directions for the lumber, it impliedly consented that the purchase should be governed by those terms. Until that acceptance there was no stage in the negotiations when there was not some respect in which the minds of the parties had failed to meet. That " sales slip," coupled with the subsequent shipping directions, finally fixed the rights...