Cooper v. Lansing Wheel Co.

• Decision Date: 23 December 1892
• Citation: 94 Mich. 272,54 N.W. 39
• Court: Michigan Supreme Court
• Parties: COOPER et al. v. LANSING WHEEL CO.

54 N.W. 39

94 Mich. 272

COOPER et al. v. LANSING WHEEL CO.

Supreme Court of Michigan

December 23, 1892

Error to circuit court, Ingham county; Rollin H. Person, Judge.

Action by Marian H. Cooper and others against the Lansing Wheel Company for breach of contract to deliver to plaintiff certain goods at specified prices. From a judgment sustaining a demurrer to the declaration, plaintiffs appeal. Reversed.

Q. A Smith, for appellants.

Cahill & Ostrander, for appellee.

MONTGOMERY J.

This is an appeal from a judgment sustaining a demurrer to plaintiff's declaration. The first count of the declaration alleged an agreement "whereby the said defendant did undertake, promise, and agree, to and with the plaintiffs, to furnish, sell, and deliver to said plaintiffs all of such number or quantity of wheels, at and for an agreed price, as said plaintiffs should or might require or want, during the season of the year 1890, in their said business of manufacturing;" that during the season of 1890 plaintiffs agreed to order, and did order, of defendant all of such wheels as they might or should want or require in their said business; that certain orders so given were filled, and that certain other orders given in November and December, 1890, defendant refused to fill. The second count sets forth a written agreement, which is as follows: "Owosso, Mich., Dec. 16, 1889. Mess. Lansing Wheel Co., Lansing, Mich.-Gentlemen: Please enter our order for what wheels we may want during the season of 1890, at following prices and terms: B, $6.00; C, $5.00; D, $4.00,-per set, f. o. b. Owosso, 30 days. All the wheels to be good stock, and smooth. Should we want a few D wheels, to be extra nice stock, all selected white. They are to be furnished at same price, not to exceed 10 set in a 100. Very respectfully yours, Owosso Cart Co." Upon receipt of this instrument defendant indorsed thereon the following: "Accepted. Lansing Wheel Co." Then follow the allegations as to the giving and filling of certain orders, and the refusal to fill certain other orders which were given. The defendant demurred to this declaration, the substantial ground of demurrer being that there was no mutuality of contract between the parties.

It was early held in England that a proposition to sell goods at a certain specified price, and to give the offeree a stated time in which to accept or reject the offer, did not make a binding contract, which could not be withdrawn before acceptance. See Cooke v. Oxley, 3 Term R. 653. The doctrine of this case has not, however, remained unchallenged. Mr. Storey, in his work on Sales, expresses the opinion that the rule is unjust and inequitable. Section 126. He contends that the grant of time to accept the offer is not made without consideration. He suggests as one sufficient legal consideration the expectation or hope of the offeree and further suggests that the making of such an offer might betray the other party into a loss of time and money, by inducing him to make examination, and to inquire into the value of the goods offered, and this inconvenience assumed by him is a sufficient consideration for the offer. There is much force in this reasoning, but it has not prevailed, to abate the doctrine of Cooke v. Oxley, further than this: that it is now generally held that if a proposition be made, to be accepted within a given time, it constitutes a continuing offer, which, however, may be retracted at any time. But if, at any time before it is retracted, it is accepted, such offer and acceptance constitute a valid contract. It was therefore within the power of defendant, in the present case, on the authority of the cases cited, to withdraw the offer made at any time before the plaintiffs had acted upon it. Authorities may be found which go further than this. The case of Bailey v. Austrian, 19 Minn. 535, (Gil. 465,) holds that a contract by which defendants agree to supply plaintiffs with all the pig iron wanted by them in their business until December 31st next ensuing, at specified price, and the plaintiffs simultaneously promise to purchase of defendants all of the iron which they might want in their said business during the time mentioned, at stated prices, was not a mutual contract, which could be enforced, on the ground that the plaintiffs did not engage to want any quantity whatever. The same court, in Tarbox v. Gotzian, 20 Minn. 139, (Gil. 122,) reaffirm this doctrine. In Keller v. Ybarru, 3 Cal. 147, plaintiff counted upon an agreement by the defendant,...