Emerson v. Stevens Grocer Company

• Decision Date: 20 June 1910
• Citation: 130 S.W. 541,95 Ark. 421
• Parties: EMERSON v. STEVENS GROCER COMPANY
• Court: Arkansas Supreme Court

130 S.W. 541

95 Ark. 421

EMERSON v. STEVENS GROCER COMPANY

Supreme Court of Arkansas

June 20, 1910

Appeal from Jackson Circuit Court; Charles Coffin, Judge; reversed.

Judgment reversed and cause remanded.

John W. & Joseph M. Stayton, for appellant.

To constitute a binding contract, there must be an offer and an acceptance. 90 Ark. 133; 52 Ind. 286; 4 Col. 353; 37 Ia. 186; 40 La. 402; 1 La. 190; 10 La.Ann. 120; 24 Id. 620; 105 Ill. 43; 42 N.Y.S. 578; 30 Ark. 186; 100 S.W. 271; 111 S.W. 668. The correspondence was simply preliminary, and not a final contract. 86 Hun 374; 2 Cranch, C. C. 143; 108 Cal 666; 1 Mart. (U.S.) 420; 30 La.Ann. 117; 30 La.Ann. 316. The question as to whether there was a contract should have been submitted to the jury. 141 N.C. 277; 8 Pa. S.Ct. 424; 35 N.J.Eq. 266; 53 Pa.St. 373; 2 N.Y.S. 218.

Jones & Mack, for appellee.

The acceptance and retention of the check involved the acceptance of the condition. 55 N.E. 717; 138 N.Y. 238; 33 N.E. 1035; 20 L. R. A. 785. Correspondence may result in a contract although there is an agreement that it will later be reduced to writing. 29 L. R. A. 431; 144 N.Y. 209; 88 Wis. 622; 10 Bush 632.

OPINION

FRAUENTHAL, J.

This was an action for the recovery of damages for the breach of an alleged contract of sale of a car of potatoes. The appellants were merchants, located at St. Paul, Minn., and were engaged in the business of selling goods by the wholesale. The appellee was a corporation doing business at Newport, Ark. The appellee alleged that the appellants had contracted to deliver to it at Marianna, Ark., a car of potatoes at an agreed price during the first half of February, 1908, and that they had wholly failed to do so; and it sought to recover from appellants the damages which it had sustained by reason of said breach of said contract. The appellants denied that they had entered into any contract for the sale of said potatoes. The negotiations leading up to the alleged consummation of said contract were conducted by letters and telegrams. On December 23, 1908, the appellee wrote to appellants from Newport, Ark., as follows:

"Quote us not later than Saturday, December 26, prices, Triumphs Early Rose, Burbank and Peerless seed potatoes for February shipment."

Appellants wired on the 25th:

"Triumphs dollar fifteen, Peerless, Rose ninety, Burbank eighty seven bushel, sacked, delivered."

Appellants also wrote appellee on the 26th:

"On receipt of your letter we at once wired you our price seed potatoes. It seems our crop, especially Triumphs, short and will no doubt be high."

Appellee on the 28th wired:

"Accept one car yours twenty-fifth. Specifications follow by mail."

Appellee wrote appellant on the 29th:

"This will confirm our wire order of the 28th, for one car seed potatoes for Marianna, Arkansas, shipment, same to be made in first half of February, specific shipping date to follow. Of course, you understand that these are to be genuine Northern potatoes, and we want them put up in 150 pound even weight sacks. Ship as follows:

210 bags Triumphs, at

$ 1.15

35 bags Early Rose,

at .90

4 bags Burbanks, at

.87

"Ship direct, sending all papers to us here at Newport. Draft through the Arkansas Bank & Trust Co."

Appellants answered on the 31st:

"We have your mail order for car seed potatoes to be shipped first half of February to Marianna, Ark. We find the freight rate to Marianna is 5c cwt., or 3c bushel higher than to Newport. We suppose you had figured on the advance freight. On all future orders we demand $ 100 on car on contract. Please mail us your check, and we will return you your signed contract."

On December 29, appellants had written to appellee in regard to the telegram of December 28, as follows:

"We have your night wire, order car potatoes. You understand that our quotation was for reasonably prompt shipment. Hope to receive full specifications in a few days, so we can make the shipment."

On January 2, 1909, appellee wrote to appellants as follows: "Yours of the 29th at hand, and you are evidently mistaken as to the time of shipment of car as purchased of you by wire December 28. If you will refer to our letter of December 23, you will note that we ask plainly for price for February shipment, and you say nothing about when shipment was to be made, and naturally took your price for answer to our letter as referred to above. Hoping that you will see this as we do, and wishing you a prosperous year, we remain, very respectfully, etc." Appellants answered on the 4th:

"Answering yours of the 2d, we will waive the time of shipment, providing you send us your check for $ 100 on contract. We will mail you contract on receipt of your check, and ship the potatoes first of February. Let us hear from you promptly."

On January 6, 1909, appellee then wrote to appellant as follows:

"Inclosed find our check for $ 100 to apply on contract for Marianna. Your competitors are offering us same price delivered Marianna, as Newport, as that place takes Little Rock rate. We will expect you to do as much for us as your competitors."

The above check was deposited by appellants in bank at St. Paul on February 9, and was paid by the bank at Newport, upon which it was drawn, on January 14, 1909; but the appellants did not make any reply to the letter of January 6 immediately upon its receipt. On January 11, 1909, the appellee wired to appellants, asking them to quote prices on another shipment of potatoes to be delivered at Diaz, Ark., and on the same day appellants replied by wire, giving quotations and also in said telegram stated: "Marianna rate as written must have additional freight." The appellee made no reply to this portion of the telegram relating to the Marianna shipment, but on January 21, 1909, wrote to appellants as follows: "Inclosed find check for $ 300 to apply $ 100 each on the three cars as follows: Newport, Newark and Swifton. Please send us signed contract for these as well as for the Marianna car as sent you some time ago."

On January 23, 1909, appellants wrote to appellee as follows: "We have your checks this morning for all the cars but Marianna, as there was some misunderstanding regarding this order. We herein return you that order, which we have cancelled."

On January 25, 1909, appellee wrote to appellant that it had in its letter of January 6 sent check for $ 100 on the Marianna shipment, and that the contract for sale thereof was thereby consummated. On January 27, 1909, the appellants wrote to appellee, denying that any contract had been made for the Marianna shipment, and returned to appellee check for $ 100. This check the appellee returned to appellants on January 29, claiming that the contract for the purchase of the Marianna car of potatoes had been fully consummated.

The appellants introduced testimony tending to prove that when they received the letter of January 6, 1909, with inclosure of check, they deposited the check in bank and held its proceeds pending the further negotiations for arriving at an agreement relative to the price of the potatoes ordered for Marianna shipment, and that when they learned that no agreement could be arrived at they at once returned the amount to appellee, and that they did not accept the suggested offer or counter-proposition contained in that letter.

At the request of the appellee the court amongst other instructions gave the following to the jury:

"3. If you find that, upon plaintiff ordering a car of potatoes on Newport quotations delivered at Marianna, defendant notified plaintiff that delivery at Marianna would be at a higher rate, and would require a deposit of $ 100 for future delivery, and that plaintiff remitted the amount, but asked a modification to the Newport rate, and defendants accepted and used the check so sent, without further notice to plaintiff, it would be an acceptance of the order for the carload of potatoes unless directly declined by defendants, and would be a contract."

The jury returned a verdict in favor of appellee.

The sole question involved in this case was whether or not there was a contract entered into between the parties by which the appellants sold to appellee a car of potatoes to be delivered at Marianna, Ark., at the prices quoted by them in their telegram of December 25, 1908. This is, we think, under the testimony adduced in the case, a mixed question of law and of fact. It is well settled that, before there can be a contract formed and entered into, there must be a meeting of the minds of both parties to the terms of the agreement. There can be no binding contract of sale until the parties have agreed to the same proposition which is the subject of the contract. There must be an offer to sell upon the one hand and an acceptance of the same offer before it can be said that the contract of sale has been consummated. Mere negotiations for entering into the contract will not suffice, but the proposition to which the negotiations lead for the agreement must be finally assented to by both parties. So, in determining whether or not a contract of sale...