Graham v. Mercereau Hawkins Tie Company
| Decision Date | 16 May 1923 |
| Docket Number | 11,448 |
| Citation | 139 N.E. 374,81 Ind.App. 371 |
| Parties | GRAHAM ET AL. v. MERCEREAU HAWKINS TIE COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied October 12, 1923.
Transfer denied April 8, 1924.
From Johnson Circuit Court; Fremont Miller, Judge.
Action by Mercereau Hawkins Tie Company against John W. Graham and another. From a judgment for plaintiff, the defendants appeal.
Reversed.
Walter L. Neible, George I. White and Fred R. Owens, for appellants.
Paul W Scott, William M. Pruit and William E. Deupree, for appellee.
On October 13, 1919, appellee wrote to appellants as follows:
On October 18, 1919, appellants wrote the following to appellee:
On January 10, 1920, while shipments were being made on the above order, appellants made the following inquiry of appellee by letter: "Have you any more of this material to offer at present, and if so at what price?" On January 16, 1920, appellee wrote appellants the following response: "We could furnish you additional stock, say five cars, to be delivered as we get the cars, for $ 90 per M. * * * If you care to place an additional order at the above price, let us know at once, and we will see that you are taken care of." On January 30, 1920, appellants, in an answer to said last named letter, made the following statement: "We note that you have about five cars of additional stock of the No. 2 common and better tie siding, which you could furnish us at this time at $ 90 per M." This statement was followed by an outline of a proposed plan for combining their old order, on which appellee was still making shipments, with their proposed new order for five additional cars, and a concluding statement reading as follows: "Kindly advise us at once what you think of this proposition, and we will send you our formal order by return mail." On February 2, 1920, appellee made response by letter as follows: * * *" On February 4, 1920, appellants sent appellee the following order: * * *" Appellee shipped one car on said last named order, which was not accepted because of its grade and condition, until an adjustment had been made. Thereafter appellee shipped the remaining four cars of said order, but appellants refused to accept the same because of the grade and condition of the siding. On appellee's request, appellants unloaded said cars, and held the siding subject to the former's orders. Afterwards appellee instituted this action to recover for said four cars of siding by filing a complaint in two paragraphs. The first is based on an account for merchandise received by appellants from appellee, and the second is based on said order of February 4, 1920. Appellants filed an answer in two paragraphs, and also counterclaim against appellee. The first paragraph of answer is a general denial, and the second, after an admission that appellants had placed with appellee the order in suit, alleges that its full terms and conditions were to be found in the letters set out above; that the grade and condition of the siding in question was not in conformity with their said contract, and for that reason they refused to accept the same. Issues having been joined on said counterclaim and said second paragraph of answer by the filing of general denials, the cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee. Appellants filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal.
Appellants contend that if the verdict rests on the first paragraph of the complaint, it is not sustained by the evidence, as there is no proof that they accepted the siding in question, and that if it rests on the second paragraph, it is not sustained by the evidence, as there is no proof that the siding was of the grade, and in the condition, specified in the contract under which it was shipped. We sustain appellants' contention as to the first paragraph of the complaint, and will now direct our attention to said second paragraph.
Appellants contend that the contract under which said siding was shipped provides that it should be dry oak, No. 2 common and better sixty-five per cent. being No. 1 common, while appellee contends that the contract provides that the siding should be merely dry oak, No. 2 common and better. A determination of these opposing contentions will be decisive of this appeal. It will be observed that the order of February 4, 1920, is not complete within itself, as it provides that the time and terms of shipment were to be as before, thus indicating that they were to be the same as in their former agreement in that regard, and also expressly provides, that the order "is in accordance with our (appellants') letter of January 30th, and your (appellee's) reply of February 2, 1920." This requires us to examine the letters mentioned, and any other communications between the parties to which reference is made therein, in order to ascertain the full terms of the contract of which said order forms a part. We observe that said letter of January 30 was written by appellants in answer to one received from appellee dated January 16, both in 1920, in which the latter had stated that it could furnish the former "additional stock, say five cars, * * * for $ 90 per M."; and that this quotation was made in response to a letter received from appellants, dated January 10, 1920, which, after referring to an existing order between them, dated October 18, 1919, (by which appellee had agreed to ship appellants 150,000 ft. of dry oak siding, which would grade No. 2 common and better, sixty-five per cent. being No. 1 common) concluded with the...
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