Hard Man Lumber Co v. Keystone Mfg. Co

• Decision Date: 11 May 1920
• Docket Number: (No. 3929.)
• Parties: HARD MAN LUMBER CO. v. KEYSTONE MFG. CO.
• Court: West Virginia Supreme Court

103 S.E. 282

HARD MAN LUMBER CO.

v.KEYSTONE MFG. CO.

(No. 3929.)

Supreme Court of Appeals of West Virginia.

May 11, 1920.

(Syllabus by the Court.)

Error to Circuit Court, Randolph County.

Action by the Hardman Lumber Company against the Keystone Manufacturing Company. Judgment for plaintiff, and defendant brings error. Reversed, verdict set aside, and cause remanded for new trial.

Samuel T. Spears, of Elkins, for plaintiff in error.

Talbott & Hoover, of Elkins, for defendant in error.

RITZ, J. This action was instituted to recover damages from the defendant because of its failure to furnish certain lumber to the plaintiff, in accordance with the terms of a purported contract set up and relied upon. To a judgment awarding the plaintiff the damages claimed, defendant prosecutes this writ of error.

Both the plaintiff and the defendant are engaged in the lumber business at the city of Elkins. It appears that in March, 1916, the plaintiff had an inquiry from a customer to furnish 20 carloads of crating strips of certain dimensions. Just prior to this time this customer had procured a carload of these strips from the plaintiff, which the plaintiff had in turn procured from the defendant. The plaintiff was not in position to fill the order for 20 cars itself, so its president took the order to the president of the defendant and submitted it to him for the purpose of procuring his price for the material, with a view to then making a quotation to the plaintiff's customer. Defendant's president quoted a price of $20 per thousand feet, and plaintiff's president says that upon getting this quotation he quoted a price to his customer, and that upon the acceptance of the same he thereupon accepted the offer made to him by the defendant. It appears that the bill upon which the defendant was requested to quote a price specified in it the dimensions of the strips to be furnished, and after each specificationof dimensions under the head, "feet per hundred pieces, " was specified the number of feet which each hundred pieces should measure. These strips were to be five-eighths of an inch in thickness, and this calculation of the number of feet contained in each hundred pieces was based upon the actual measurement of the strips, while the defendant made its quotation upon the basis of surface measurement. It will thus be seen that there would be only % as much lumber in the shipment, according to the basis contained in the bill submitted, as there would be upon the basis of surface measurement. The defendant showed that the car which had been shipped just previously was billed and paid for upon the basis of surface measurement; that the custom in the business was to base quantities upon surface measurements in all eases where the lumber was under one inch in thickness; and, further, that this was the rule of the Hardwood Lumbermen's Association, of which both parties are members.

The defendant's president testifies that when this order was submitted to him he presumed that the measurements would be made in the ordinary way; that he did not make the calculations to see upon what basis the quantities stated in the bill were ascertained; in fact, that he paid little attention to this part of the order. He acted upon the assumption that surface measurement was indicated because the plaintiff's president who brought the bill to him said nothing to the contrary. That was the custom in the business; that was the rule of the Association to which both of them belonged; that was the basis upon which the ear which had just been furnished had been measured and paid for; and, further, the price which he quoted, to wit, $20 per thousand feet, was so inadequate upon the basis of actual measurement as to reasonably notify the plaintiff's president that he was quoting upon the basis of surface measurement, his statement being that the reasonable price for the lumber upon the basis of actual measurement would have been $28 or $29 a thousand instead of $20. Upon the cross-examination of the president of the plaintiff, who was its principal witness in the case, the defendant attempted to show by him that he knew at the time that the plaintiff was quoting the price upon the basis of surface measurement; but the court declined to allow cross-examination along this line, upon the theory, as stated in his rulings, that if the defendant's president read, or had the opportunity to read the order, and could tell therefrom that the measurement was actual measurement, such evidence was immaterial. It cannot be doubted that if the defendant's president had made the calculation, he could have ascertained that the order was upon the basis of actual measurement; and upon the submission of the case to the jury the court instructed it that if the defendant's president read the order, or had the opportunity of reading the same, then the defendant was bound thereby, and the plaintiff was entitled to recover the difference between the contract price and what it paid for the material in the market. This action of the court constitutes the basis of the principal assignment of error.

There is no doubt but that when an unequivocal offer is made by one party to another, which offer is in good faith accepted, a contract is formed, and both parties are bound thereby; but there is another rule which seems to be equally as well established, and that is that where the party making the offer makes a mistake, and the price at which the articles are offered is so out of proportion to the real value thereof that the other party must know that the offer is made by mistake, or the circumstances which surround the parties at the time are such as to give notice to the party receiving the offer that it has been made under a misapprehension upon the part of the other party of some material fact, or the party to whom the offer...