C.W. Hull Co. v. Marquette Cement Mfg. Co.

• Decision Date: 01 October 1913
• Docket Number: 3,891.
• Citation: 208 F. 260
• Parties: C. W. HULL CO. v. MARQUETTE CEMENT MFG. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

208 F. 260

C. W. HULL CO. v. MARQUETTE CEMENT MFG. CO.

No. 3,891.

United States Court of Appeals, Eighth Circuit.

October 1, 1913

John Lee Webster, of Omaha, Neb., for plaintiff in error.

Edward M. Martin, of Omaha, Neb., and Benjamin T. Roodhouse, of Chicago, Ill., for defendant in error.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

The Marquette Cement Manufacturing Company was plaintiff below and brought this action to recover damages from C. W. Hull Company for the alleged breach of a contract to purchase 50,000 barrels of cement from plaintiff during the season of 1907. The Hull Company, with headquarters at Omaha, Neb., had held the exclusive agency for the sale of plaintiff's cement in certain territory for three years prior to 1907. Early in that year negotiations were entered upon between the companies as to the business for the ensuing season. It was carried on mainly by correspondence and involved questions as to the quantity, price, and territory. On February 13th the territory had been defined and the quantity fixed at 50,000 barrels. On that date plaintiff submitted to defendant, on one of its regular quotation forms, a proposition for the year's business. The document covered such subjects as the terms of payment, the return of sacks, and excuses for failure to perform on the part of the plaintiff, due to causes beyond its control. In this proposal plaintiff offered the defendant cement f.o.b. its mill at Chicago as follows:

10,000 barrels at 1.40.

20,000 barrels at 1.50.

25,000 barrels at 1.60.

On February 15th the defendant replied to this proposal as follows:

'We have your esteemed favor of the 13st inst., and the general scheme which you suggest is not unsatisfactory, but the prices are too high. We believe we ought to have for this contract a level 10 cts. per barrel better than you offer on your distribution, or else 25,000 barrels at 1.40 and 25,000 barrels at 1.50 to be taken in even weekly amounts during the season.'

On February 18th plaintiff replied as follows:

'In reference to yours of the 15th, we will make a price of 1.40 in bulk at our mill on 10,000 barrels, and 1.50 in bulk at our mill on 40,000 barrels, the 50,000 barrels to be taken by you in equal monthly shipments beginning March 1, 1907, all to be shipped before December 1, 1907.'

On February 25th defendant submitted a counter proposal inclosing a written contract covering matters as to which the parties were already agreed and proposing prices and monthly shipments as follows:

April . . 5,000 barrels at 1.40.

May . . . 5,000 barrels at 1.40.

June . . . 5,000 barrels at 1.40.

July . . . 5,000 barrels at 1.40.

August . . . 10,000 barrels at 1.50.

September . . . 10,000 barrels at 1.50.

October . . . 10,000 barrels at 1.50.

It will be noticed that it changed the time of the first month's delivery from March to April, and also provided for 20,000 barrels at 1.40 instead of 10,000 barrels, as plaintiff proposed in its letter of the 18th.

February 26th plaintiff replied to defendant's letter of the 25th as follows:

'Referring to yours of the 25th inst. just received, with memorandum of agreement inclosed, would say that we are willing to have the shipments begin April 1, 1907, as suggested by you, but cannot accept your order except on the basis of our former proposition, the quantities and prices being as stated in your memorandum of agreement except that the 5,000 barrels for June and July the prices will be $1.50 per barrel, f.o.b. bulk mill. We have several matters of importance pending, and make this proposition good for your acceptance until the close of business February 27th, and must ask you to wire us whether or not you desire to avail yourselves of this our very favorable proposition to you. If we do not hear from you as above, all propositions will be considered as withdrawn.'

It will be noted that plaintiff here acceded to defendant's request that deliveries begin April 1st instead of March 1st but refused to accede to its request that the 5,000 barrels to be shipped respectively June and July should be at $1.40 per barrel; plaintiff expressly providing in this final offer that the shipments for these months should be at $1.50 per barrel.

February 27th the Hull Company, complying with the requirements of this letter, wired the Marquette Company as follows:

'One fifty bulk mill for June and July is acceptable to us.'

In our judgment this telegram covered the only matter in difference between the parties and brought their minds together into a binding contract.

On February 28th plaintiff wrote the defendant a letter in which it states its understanding to be the same as that expressed in defendant's proposed contract of the 25th, saving only the matter of price for the June and July shipments, and embodied the order as agreed upon by the negotiations culminating in the telegram on one of its regular quotation forms. Neither in this letter nor in the quotation form are any matters introduced as to which the parties had not already reached an agreement, and their only office seems to have been to express in a single statement the terms which had been agreed to from time to time in the correspondence. Neither document contemplates a reply or acceptance by defendant, and they cannot properly be construed as a new offer by plaintiff. The letter begins with the following language:

'Referring to our regular formal proposition of the 13th inst., and our letter of the 26th inst., we have booked your order for 50,000 barrels in accordance with the terms therein.'

To this letter, with its formal statement of the result of the negotiations between the parties, and the definite declaration of the understanding of the plaintiff, there was no response by the defendant. From that time on plaintiff went forward filling orders from time to time given by the defendant for cement during the season of 1907.

In a letter of February 28th accepting such an order, plaintiff stated to the defendant as follows:

'This will apply on your contract dated to-day, and is subject to the terms and conditions stated therein.'

Similar language is used in accepting other orders. For example, on April 2d plaintiff wrote defendant as follows:

'Above order applies on your 50,000 barrel contract dated February 28, 1907, and is subject to the terms and conditions stated therein, and takes up your April quantity.'

The price of cement declined during the summer, and defendant failed to give shipping orders for the quantities which it had agreed to receive from month to month. The record contains numerous letters in which the defendant calls upon the plaintiff to furnish such shipping directions and insists that the defendant take the quantities of cement agreed upon. References are made in these letters to the contract between the parties. Defendant in no way repudiates its obligation or intimates that it had not agreed to accept cement from month to month but simply omitted to give...