Griffin Grocery Co. v. Kingfisher Mill & Elevator Co.
| Citation | 1934 OK 247,168 Okla. 157,32 P.2d 63 |
| Decision Date | 24 April 1934 |
| Docket Number | Case Number: 21865 |
| Parties | GRIFFIN GROCERY CO. v. KINGFISHER MILL & ELEVATOR CO. |
| Court | Supreme Court of Oklahoma |
¶0 1. Sales--Action Against Seller of Flour and Feed for Breach of Contract--Negotiations Held to Disclose no Definite and Unqualified Proposal and Acceptance.
A contract in writing is pleaded as the basis of plaintiff's right to recover. An examination of the contract pleaded fails to disclose that at some point in the correspondence there was a definite and unqualified proposal by one party which was unconditionally and without qualification accepted by the other party, and the contract as pleaded being, under the allegations of the second amended petition, insufficient in itself to bind either the plaintiff or defendant, no cause of action is stated on which damages for breach of the alleged contract can be recovered.
2. Contracts--Essential Meeting of Minds.
Before there can be an agreement there must be a meeting of the minds of parties on matter attempted to be agreed on, and no contract can be said to have been created where their minds have not agreed on one and the same thing.
3. Same--Proof of Contract by Letters and Telegrams.
When it is sought to establish a contract by letters and telegrams which pass between the parties, containing proposals, answers, and counter proposals, it must be made to appear that at some point in the correspondence there was a definite and unqualified proposal by one party which was unconditionally and without qualification accepted by the other party.
4. Frauds, Statute of--Contract not Completed Where Memorandum Leaves Essential Part to Rest in Parol.
A memorandum to be sufficient under the statute of frauds must be complete in itself and leave nothing to rest in parol, and where the parties have left an essential part of the agreement for future determination, it is no doubt correct to say that the contract is not completed.
Appeal from District Court, Kingfisher County; J.W. Bird, Judge.
Action by the Griffin Grocery Company. Against the Kingfisher Mill & Elevator Company. From a judgment in favor of the defendant, the plaintiff appeals. Affirrmed
W. J. Horton, W. S. Horton, and E. M. Bradley, for plaintiff in error.
Brownlee & Blaine, for defendant in error.
¶1 This is an appeal from a judgment of the district court of Kingfisher county, Okla., sustaining a demurrer to the second amended petition of the plaintiff in error, who was plaintiff below, and rendering a judgment in favor of the defendant in error, defendant below.
¶2 For the purpose of determining the decisive questions involved in this appeal, It is not deemed necessary that we set out herein in haec verba the second amended petition of the plaintiff. It will be sufficient to state the material averments thereof, on which the plaintiff rests his cause of action. In this pleading, the plaintiff says that the defendant by a written contract sold to said plaintiff 5,000 bbls. of flour at $ 4.60 per bbl., including freight, and 10,000 bags of feed, consisting of 5,010 bags of mill run at $ 1.10 per bag, and 5,000 things of shorts at $ 1.30 per bag, including freight; that said contract was subject to confirmation by the defendant, and that said defendant confirmed said contract, with modifications as follows. The quantity of feed was reduced from 10,000 bags to 5,000 bags, being 2,500 bags at $ 1.20 per bag, and 2,500 bags at $ 1.40 per bag, including freight, and that the said contract and modification thereof were contained and are set forth by certain letters, telegrams, and conversation.
¶3 The plaintiff alleges that the said original order, or contract, was subject to confirmation by the defendant, and that the defendant confirmed said contract with modifications. It says that a certain alleged contract was entered into by the plaintiff and defendant evidencing that the defendant sold to the plaintiff, subject to the terms and conditions stated in said alleged contract and printed on the back thereof, certain flour and feed at prices named therein, and that such sale was made upon the terms and conditions of said contract and were binding on both parties, and could not be modified except by written consent Of both parties, and no verbal conditions, warranties, or modifications were valid as to the quantity, brands, and prices or units of the commodities sold. The following is a copy as set out in said alleged contract:
¶4 Quantity Commodity Flour Feed, etc.) Brands Price Per Unit.
¶5 (Bbl. Ton or Cwt.)
¶6 5,000 Kingfisher Best Grade High Patent $ 4.60
¶7 10,000 bags feed Bran 1.00
¶8 Mill Run 1.10
¶10 The plaintiff alleges that after receiving this said alleged contract, the defendant wrote a letter to the plaintiff, the material part of which contained the statement that it was not able to fill the alleged contract or order, for the reason that it could not supply the amount of mill feed specified therein; that after receiving said letter, the plaintiff wrote to the defendant a letter stating its willingness to reduce the quantity of feed from 10,000 to 8,000 sacks; that in answer to this letter, the defendant wrote to the plaintiff that it still was not able to furnish even all of the 8,000 sacks of feed, but in said letter used the following language:
¶12 Plaintiff further alleges that it accepted the conditions set out in the letter by sending to the defendant the following telegram:
¶13 That in reply to this telegram, the defendant sent the following telegram to the plaintiff:
¶14 And on the same day wrote to the plaintiff the following letter:
¶15 Plaintiff further says in its second amended petition it accepted defendant's proposition and amendment of said contract by its said telegram, and that said contract, letters, and telegrams, modifying the same, formed a valid, complete, and binding contract and agreement of sale between the plaintiff and defendant for the sale and delivery by defendant to plaintiff, as per the terms of said contract, of 5,000 bbls. of Kingfisher best grade high patent flour at the price of $ 4.60 per cwt., and 5.000 sacks or bags of feed at the price of $ 1.20 and $ 1.40 on mill run and shorts, and that it is not true, as stated in defendant's said telegram and letter, that plaintiff refused in a telephone conversation of that day to accept defendant's proposition contained in its former letter modifying said contract. That, under and by virtue of the foregoing letters, telegrams and telephone conversation, there was formed by and between the plaintiff and defendant a contract of sale for said articles: that defendant refused to perform said contract; that during the time of these negotiations, the market price of these products had increased, and that plaintiff suffered damage in the sum of $ 5,500 by reason of the defendant's failure to furnish said commodities according to the terms of said alleged contract.
¶16 To this second amended petition the defendant filed its demurrer on four separate grounds. By reason of the views hereinafter expressed, it will not be necessary to consider any of the grounds of this demurrer, except that the petition does...
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... ... Stewart, 134 Cal.App. 482, 24 P.2d 497; ... Griffin Gro. Co. v. Kingfisher Mill & Elev. Co., 168 ... Okla ... ...
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...675, 101 P. 1130, the only Oklahoma decision we have been able to find bearing on this question. 4 See Griffin Grocery Co. v. Kingfisher Mill & Elevator Co., 168 Okl. 157, 32 P.2d 63, 66; Boatright v. Steinite Radio Corp., 10 Cir., 46 F.2d 385, 389; Williston on Contracts, Rev.Ed., Vol. 1, ......
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