H. Gaus & Sons Mfg. Co. v. Chicago Lumber & Coal Co.

• Decision Date: 12 December 1905
• Citation: 115 Mo. App. 114,92 S.W. 121
• Court: Missouri Court of Appeals
• Parties: H. GAUS & SONS MFG. CO. v. CHICAGO LUMBER & COAL CO.

92 S.W. 121

115 Mo. App. 114

H. GAUS & SONS MFG. CO. v. CHICAGO LUMBER & COAL CO.

St. Louis Court of Appeals. Missouri.

December 12, 1905.

1. SALES—CONTRACTS—OFFER AND ACCEPT ANCE.

Where plaintiff ordered certain lumber of defendant, who returned an acceptance qualified by a number of variances in respect to the grading of the lumber, the time and mode of payment and shipping, and making the contract contingent on strikes, accidents, etc., plaintiff could show its acceptance of defendant's offer containing such variances by its conduct in accepting deliveries of lumber furnished thereunder.

2. JUSTICES OF THE PEACE—ACTIONS—PLEADING.

Where a suit for breach of a contract of sale was commenced in a justice court where formal pleadings are not required, it was not necessary that plaintiff should allege an acceptance of defendant's offer by conduct in order to entitle it to introduce parol proof of such acceptance.

3. SALES—CONTRACT—BREACH—FINDINGS.

Where plaintiff ordered certain lumber from defendant, the order providing "sample cars to decide this order," and defendant's acceptance was subject to certain conditions, after which two cars were shipped which were rejected, plaintiff was not entitled to recover for defendant's failure to ship the amount ordered, in the absence of a finding that a contract had been actually made between the parties.

4. SAME—RESCISSION.

Where lumber was ordered, "sample cars to decide this order," and after certain of the cars first shipped had been rejected, defendant wrote plaintiff that it was out of the question for defendant to meet plaintiff's requirements and therefore thought it best to consider the order canceled, and requested plaintiff to supply its wants from some other source, a finding that such letter did not amount to a rescission of the contract, was erroneous.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by the H. Gaus & Sons Manufacturing Company against the Chicago Lumber & Coal Company. From a judgment in favor of plaintiff, defendant appeals. Judgment on first count of petition reversed, and judgment on second count affirmed.

W. H. Saunders, for appellant. Harlan, Jeffries & Wagner and Franklin Miller, for respondent.

BLAND, P. J.

The suit was commenced before a justice of the peace, in the city of St. Louis. From a judgment rendered by the justice, an appeal was taken to the circuit court. On a trial anew in the circuit court, the issues were submitted to the judge, sitting as a jury, who, after hearing the evidence, made special findings of the facts and found the issues for the plaintiff.

The petition or statement on which the cause was tried in both courts is as follows (omitting caption): "Plaintiff for cause of action states that both it and defendant are corporations duly authorized to do business and sue and be sued in the state of Missouri. That on December 5, 1900, plaintiff made its proposal in writing to defendant whereby it offered to purchase of defendant two hundred and fifty thousand (250,000) feet of 1-inch No. 2 yellow pine boards, the same to be 6, 8, and 12-inch widths, it being provided that the 6-inch widths should not exceed fifteen (15 per cent.) per cent. at the price of $11.15 per thousand feet f. o. b. cars Wiggins Ferry Company, North Market street, city of St. Louis; which said proposal is hereto attached and marked `Exhibit A'; that defendant accepted said proposal on the 6th day of December, 1900, by its written acceptance of that date which said acceptance is hereto filed and marked `Exhibit B.' That in pursuance of said contract defendant made shipments and did furnish to plaintiff about thirty-five thousand one hundred sixteen (35,116) feet of said lumber, but the said defendant wholly disregarding its duty refused to make further deliveries though frequently requested to do so by the plaintiff; that after the execution of said contract the price of the kind of lumber mentioned in said contract advanced and plaintiff was compelled to supply its wants to go into the market and buy said lumber at the advanced price, and that by reason thereof and the breach of said contract on the part of defendant plaintiff has been damaged in the sum of three hundred seventy-five and 96/100 ($375.96) dollars. For another and further cause of action plaintiff states that there has been an open, running account between it and defendant since January, 1901, and that by reason of said account, the defendant is indebted to plaintiff in the sum of $8.80, a copy of which said account is hereto attached and marked `Exhibit C,' and made a part of this petition. Wherefore plaintiff prays judgment against defendant in the sum of three hundred eighty-four and 76/100 ($384.76) dollars with interest thereon and costs."

Exhibits A and B referred to in the petition are as follows:

Exhibit A.

                                      "Dec. 5th, 1900
                

"Chicago Lumber & Coal Co., City—Gentlemen: Please enter our order for 200 to 250 thousand feet of 1" No. 2 yellow pine boards, 6, 8, 10, 12" widths, the 6" not to run over 15 per cent. same to be shipped in as you may find it convenient, say one or two cars per week, at price $11.50 f. o. b. cars, Wiggins Ferry Company, N. Market street. Stock to be in the rough. Sample cars to decide this order. Yours very truly.

                "J. H. A.       Hy. Gaus & Sons Mfg. Co."
                

Exhibit B.

                            "St. Louis, Mo., Dec. 6, 1900
                "Our Order, D. 76
                "Your Order 22 to Our Mr. Bright
                     "From Hy. Gaus & Sons Mfg. Co
                "Ship to North Market St., via Wiggins
                  Ferry, St. Louis, Mo.
                

"General Conditions.—All agreements are contingent upon strikes, accidents, delays of carriers and other delays unavoidable or beyond our control; it is also understood that this order is taken subject to and will be shipped according to grades and classifications of the Southern Lumber Manufacturers' Association, adopted January 18, 1899, and settlement on any other basis will not be entertained.

"Terms.—60 days net. Discount of 2 per cent. cash will be allowed if remittances are received by us within 15 days from date of invoice.

"All Discounts to apply on net invoice after freight has been deducted.

"Exchange.—All bills are payable in St. Louis, Chicago, or New York exchange, and collection charges on local checks or drafts will be charged back to drawer. Claims must be reported within five days from receipt of car to be considered.

"In making delivered prices we simply guarantee the cost of goods at your place, but are in no way responsible for their safe delivery.

                  Pieces.   Size.   Length.      Amount    Descrip-      Price.
                                                 of Feet.    tion.
                250,000 ft.  1×6    8, 10 & 12"  10 to 20     No. 2      $11.50
                                                    ft.      boards
                                                             rough
                              Not to be over 15 per cent. of 6 inch.
                

"Ship at the rate of two or three cars per week.

"This order is accepted for prompt shipment. Inability to secure suitable cars will be the only cause for delay.

                          "Chicago Lumber & Coal Co.
                                    "Per V. A. Longaker.
                

"Note.—The above is a copy of our entry of your order. Please compare carefully and advise us of any error or discrepancy existing."

Exhibit C is a running account, showing a balance of $8.80 due, and one of the items being: "To 1,731 ft. of No. 2 Y. P. brds. returned, $11.50. $19.91." It was admitted on the trial that plaintiff was entitled to judgment on the second count of the petition.

1. At the threshold of the trial of the case, defendant objected to the introduction of any evidence on the ground that Exhibits A and B did not make out a contract. Considered separate and apart from the petition, these exhibits show that no contract, in fact, was made. Exhibit A is an order for from 200,000 to 250,000 feet of 1-inch No. 2 yellow pine lumber of various dimensions. Exhibit B is an acceptance of the order, qualified by a number of variances in respect to the grading and classification of the lumber, time and mode of payments and shipping, and makes the contract contingent upon strikes, accidents, etc. There are other variances from the order. It is the well-settled law that to make a concluded contract the acceptance of an offer must be unequivocal, unconditional, and without the least variance. Bruner v. Wheaton, 46 Mo. 363; Strange v. Crowley, 91 Mo., loc. cit. 295, 2 S. W. 421; Taylor v. Von Schraeder, 107 Mo. 206, 16 S. W. 675; Egger v. Nesbitt, 122 Mo. 667, 27 S. W. 385, 43 Am. St. Rep. 596; Scott v. Davis, 141 Mo., loc. cit. 225, 42 S. W. 714; Arnold v. Cason, 95 Mo. App. 426, 69 S. W. 34; Robertson v. Tapley, 48 Mo. App. 239; Stotesburg v. Massengale, 13 Mo. App. 221. But the petition alleges that in pursuance of the contract, the defendant furnished 31,161 feet of the lumber and that plaintiff thereafter repeatedly requested the defendant to make further deliveries. The allegation of these facts show that the plaintiff, by its conduct, accepted the terms of the contract as contained in Exhibit B. That it might thus signify its acceptance is clearly the law. Robinson v. City of St. Joseph, 97 Mo. App., loc. cit. 508, 71 S. W. 465; Arnold v. Cason, supra; 1 Beach on Contracts, § 34. The acceptance by conduct is not alleged in the petition. Had the suit been commenced in the circuit court, we think, it should have been alleged to entitle the plaintiff to offer verbal proof of acceptance, but as the suit was begun before a justice of the peace, where no formal pleadings are required, and as there are allegations in the petition showing, inferentially, that plaintiff, by its conduct, did accept the terms of the contract as set forth in Exhibit B, we think the court did not err in overruling defendant's objection to the introduction of any evidence.

2. The plaintiff is a manufacturer of boxes. The defendant is a manufacturer of yellow pine lumber. Plaintiff ordered the lumber to use in...