Caldwell & Drake v. Cunningham

• Decision Date: 21 January 1915
• Citation: 172 S.W. 498,162 Ky. 272
• Parties: CALDWELL & DRAKE v. CUNNINGHAM. [d1]
• Court: Kentucky Court of Appeals

172 S.W. 498

162 Ky. 272

CALDWELL & DRAKE v. CUNNINGHAM. ^[d1]

Court of Appeals of Kentucky.

January 21, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by R. M. Cunningham against Caldwell & Drake. From a judgment for plaintiff, defendants appeal. Affirmed.

Eugene R. Attkisson, of Louisville, for appellants.

A. E Walsh and Kinney & Thomas, all of Louisville, for appellee.

CARROLL J.

The appellee, Cunningham, was a dealer in lumber, and the appellants, Caldwell & Drake, were contractors and builders. Desiring to purchase some oak flooring for a courthouse they were building, Caldwell & Drake entered into negotiations with Cunningham to furnish the flooring. Following some preliminary talk concerning the quality and price of the flooring, and on May 27, 1911, Cunningham wrote Caldwell &amp Drake a letter in which he said he could furnish clear oak flooring at $99 per thousand feet and select flooring at $69 per thousand feet and that the flooring would run about 20 per cent. select and the remainder clear. After this, on June 23, 1911, Cunningham sent to Caldwell & Drake from Louisville, Ky. to Lebanon, Ind., where the flooring was to be used, samples, and in this letter said that the samples contained 80 per cent. of the clear grade and 20 per cent. of the select, and this would represent the flooring that he would send. On June 28th Caldwell & Drake wrote that they would accept the flooring according to the samples submitted and thereupon Cunningham shipped them a car load of the flooring. At the same time he sent them a bill or invoice of the shipment, which stated on its face that the price for the clear flooring was $99 and the select $69. A few days after this Caldwell & Drake wrote Cunningham that they were very much surprised at the charge for part of the flooring being $99, as according to their understanding it was all to be furnished at $69. In answer to this Cunningham replied that he did not see how there could be any misunderstanding about the price of the flooring, as his letters and invoice showed the cost. After this, and on August 15th, another car load of flooring was shipped, accompanied by an invoice showing the quantity and description and that the price was $99 for clear and $69 for select. Caldwell testified that in the preliminary negotiations with Cunningham it was distinctly understood that they could not pay more than $69 for flooring, and the contract was closed on this basis. He admitted, however, that both car loads of the flooring were used by his firm after they had received the bill and invoice for each car load which showed that the price of the clear was $99 and the select $69. Caldwell & Drake having refused to pay more than $69 for the flooring, this suit was brought by Cunningham to recover the difference between $69 and $99 for the clear flooring. After an answer had been filed setting up the defense as we have indicated, the case went to trial before a jury, and when all the evidence had been heard, the trial judge directed a verdict for Cunningham, and this appeal is prosecuted by Caldwell & Drake, questioning the correctness of this ruling on the ground that as there was an issue of fact as to the contract price of the flooring, this issue should have been submitted to the jury.

An issue was made by the evidence of Cunningham, upon the one hand, and Caldwell, upon the other, as to whether the price of the flooring was as claimed by Cunningham or as claimed by Caldwell & Drake, and it is evident from the testimony that Cunningham believed that they were to pay $99 for the clear and $69 for the select, and that Caldwell & Drake believed they were getting all of it at $69. There being this misunderstanding between the parties as to the terms of the contract before the flooring was shipped, the question for decision is, Did the acceptance and use of the flooring by Caldwell & Drake, after they knew from the invoice and bills the price charged for it by Cunningham, conclusively bind them to pay the price he charged? If we should assume that Caldwell & Drake fairly understood that the price of the flooring was $69, the letters that passed between the parties after the bill and invoice for the first car of flooring had been received and before it had been used put it beyond dispute that Caldwell & Drake knew that Cunningham's price was $99 for the clear and $69 for the select. With this knowledge before them at a time when none of the flooring had been used, we think that Caldwell & Drake, if they did not desire to pay the price charged by Cunningham, should have declined to use the flooring until the difference between them was adjusted in some satisfactory way, but that having used it, they must pay the price charged.

The...