Farmers' Produce Co. v. McAlester Storage & Com'n Co.

• Decision Date: 29 June 1915
• Docket Number: 4681.
• Citation: 150 P. 483,48 Okla. 488,1915 OK 530
• Parties: FARMERS' PRODUCE CO. v. MCALESTER STORAGE & COMMISSION CO.
• Court: Oklahoma Supreme Court

150 P. 483

48 Okla. 488, 1915 OK 530

FARMERS' PRODUCE CO. v. MCALESTER STORAGE & COMMISSION CO.

No. 4681.

Supreme Court of Oklahoma

June 29, 1915

Syllabus by the Court.

A complete contract, binding under the statute of frauds, may be made through the medium of letters, writings, and telegrams, signed by and passing between the parties, when such writings are so related to the subject-matter, and are so connected with each other, that it may be fairly said they constitute one paper relating to the contract.

An offer of sale of personal property, and its acceptance, must receive a reasonable construction, and the proposer is bound by its acceptance in that sense. Immaterial variances between the offer and its acceptance will be disregarded.

Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer.

If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted.

Where there is no direction as to the mode of communicating the acceptance of a proposed contract, the acceptance may be accomplished through the mail, unless it can be fairly and reasonably inferred from the offer, or other prior communications, that some other means is expected, and that would be a question of fact to be determined by the jury, and in such case the contract is completed as soon as the acceptance is delivered in the post office in the usual way for transmission.

Commissioners' Opinion, Division No. 4. Error from Superior Court, Pittsburg County; W. C. Leidtke, Judge.

Action brought in a justice's court by the McAlester Storage & Commission Company, a partnership composed of E. W. Schreiner and another, against the Farmers' Produce Company. Judgment for plaintiff on appeal to the superior court, and defendant brings error. Affirmed.

Wilkinson & Keith, of McAlester, for plaintiff in error.

W. J Horton and R. A. Smith, both of McAlester, for defendant in error.

ROBBERTS C.

Action to recover damages for breach of contract of sale of personal property. Appeal from the superior court of Pittsburg county.

On the 1st day of February, 1912, Douglas M. Hadley was doing a general merchandise brokerage business in the city of McAlester, Okl., under the name and style of Hadley Brokerage Company. The plaintiff in error, Farmers' Produce Company, a corporation, was carrying on a general wholesale produce business in the town of Rosholt, in the state of Wisconsin, and the defendants in error, E. W. Schreiner and J. A. Clark, as partners, were doing a general wholesale storage and commission business at McAlester, Okl., under the firm name and style of McAlester Storage & Commission Company. On the same day, the defendants in error, being desirous of purchasing two car loads, of 500 bushels each, of Triumph potatoes, authorized the above named Hadley Brokerage Company to wire the plaintiffs in error as follows:

"Feby. 1st, 1912. Farmers' Produce Company, Rosholt Wisconsin. Book McAlester Commission two cars Triumphs dollars five McAlester basis. Rabble.

The Hadley Brokerage Co."

On the next morning, about 9:30, the Hadley Brokerage Company received the following telegram in answer:

"Rosholt, Wisconsin, Feby. 2, 1912. The Hadley Brokerage Company, McAlester, Okla. Accept McAlester Commission Company two cars Triumphs. Dawson Bros. Ardmore, one car Triumphs. Central Fruit Company, one car, all one five McAlester, if you will give us time to fill, cars are scarce, how soon must the shipment be, this is all on our record to date.

Farmers' Produce Co."

After receipt of the last above-mentioned telegram, and before 12 o'clock, noon, of the same day, February 2, 1912, the defendants in error wrote and mailed to the plaintiff in error the following letter:

"Febr. 2, 1912.

Farmers' Pro. Co., Rosholt, Wis.--Gentlemen: We hand you herewith specifications and shipping instructions on the five cars sold to the Hale-Halsell Gro. Co. of this city. You will invoice each car in duplicate and draw on them through the First National Bank, McAlester, Okla.

We also have your confirmation this morning on two cars to McAlester Commission Co., one car to Dawson, one car to Central Fruit, all Triumphs, at $1.05 per bushel basis, delivered McAlester, and we are also inclosing shipping instructions on these.

We wish that if possible you would ship the car of Triumphs for the McAlester Commission Co. to Wewoka at once, as through some misunderstanding they guaranteed these people immediate shipment. The others want theirs shipped just as soon as possible. We did not guarantee any special date, but we told them we felt sure you could get these out within ten days.

Thanking you to let us have confirmation on this letter, we are,

Very truly, The Hadley Brokerage Co."

And at 4:15 p. m., of the same day, the brokerage company received from the plaintiff in error the following telegram:

"Rosholt, Wisconsin, Febr. 2nd, 1912. Hadley Brokerage Company, McAlester, Okla. We find our stock short, cancel our wire today four cars Triumphs.

Farmers' Produce Co."

On the 5th day of February, 1912, the plaintiff in error sent the following telegram to the brokerage company:

"Rosholt, Wis., Febr. 5th, 1912, Hadley Brokerage Company, McAlester, Okla. Four cars Triumphs in question was not permanently accepted. Only conditionally, which was not confirmed, therefore, we hold that cancellation is in order. If our stock had held out as we expected it would be all right, but its our error checking up what was on hand, cannot fill order.

Farmers' Prod. Co."

Thereafter, Hadley Brokerage Company collected money belonging to plaintiff in error and placed it on deposit in a bank at McAlester, in the name of Farmers' Produce Company, and proceedings in garnishment were commenced by defendant in error, against plaintiff in error, to recover damages for breach of contract of sale of said potatoes. Judgment was recovered before a justice of the peace for $130. Defendant appealed to the superior court, and after trial, on motion of plaintiff, the court directed the jury to return a verdict against defendant for the amount of damages, which was $80. There is no controversy as to the amount of recovery, provided it is finally determined that there was a valid contract, which had been breached. Motion for new trial was overruled, exceptions reserved, judgment rendered for $80, and defendant below brings error. For reversal of the case, plaintiffs in error contend for four assignments of error, as follows:

"(1) The petition does not set up a cause of action for the reason that there was no contract consummated.

(2) That, if there was a contract, it came within the statute of frauds.

(3) That the court erred in admitting incompetent testimony.

(4) That the court erred in overruling plaintiff in error's motion for verdict and demurrer to the evidence, and in sustaining the defendant in error's motion for verdict and instructing a verdict for the defendant in error, and pronouncing judgment on said verdict."

The first two assignments go directly to the question as to whether the correspondence created a valid contract of sale of the two car loads of potatoes.

The first contention of plaintiff in error is that this contract comes within the statute of frauds, "being for the sale of goods and chattels at a price not less than $50, and therefore must be in writing." Subdiv. 4, § 941, Rev. Stat. Okla. 1910 Ann.

The position of counsel in that behalf is well taken, as a proposition of law, but he is not sustained by the facts. After an examination of the telegrams and letter passing between plaintiff and defendant, we are satisfied that the correspondence brings the parties and their contract within the rule that:

"Such agreement or contract may be authenticated and established through the medium of letters and separate writings and documents, provided they refer to each other, and to the same persons and things, and manifestly relate to the same contract and transaction." Wood on Statute of Frauds, § 345.

"A complete contract, binding under the statute of frauds, may be made through the medium of letters, writings, and telegrams, signed by and passing between the parties, where such writings are so related to the subject-matter, and are so connected with each other, that it may be fairly said they constitute one paper relating to the contract." Atwood v. Rose, 32 Okl. 355, 122 P. 929.

"It is sufficient if, in the course of the transaction, the party to be charged in some writing signed by him, or his duly authorized agent, recognizes or ratifies an agreement sufficiently explicit in terms, and disclosed in writings which show unmistakably that they relate to the same transaction." Beckwith v. Talbot, 95 U.S. 289, 24 L.Ed. 496.

Guided by these rules, let us now take up these telegrams and letter. There can be no question about the parties nor the subject-matter.

First telegram:

"Feb. 1st, 1912. Farmers' Produce Co. Book McAlester Comm. Co. two cars Triumphs (potatoes) one dollar five McAlester basis.

Hadley Brokerage Co."

Answer:

"Feb. 2, 1912. Hadley Brokerage Co. Accept McAlester Comm. Co. two cars potatoes * * * if you will give us time to fill."

"Farmers' Produce Co."

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