Houston & B. V. R. Co. v. Jos. Joseph & Bros. Co.

• Decision Date: 14 December 1912
• Citation: 152 S.W. 394,169 Mo. App. 174
• Court: Missouri Court of Appeals
• Parties: HOUSTON & B. V. R. CO. v. JOS. JOSEPH & BROS. CO.

152 S.W. 394

169 Mo. A. 174

HOUSTON & B. V. R. CO. v. JOS. JOSEPH & BROS. CO.

St. Louis Court of Appeals. Missouri.

December 14, 1912.

1. CONTRACTS (§ 26) — OFFER BY CORRESPONDENCE — ACCEPTANCE.

Where a party by letter or telegram proposes to bind himself by contract and states the subject-matter and terms of the contract, the adverse party must, within a reasonable time, accept the proposition as made, and the acceptance must comprehend the entire proposition and must be unconditional, and an acceptance in any material way differing from the proposition is a rejection of the offer, and no contract is made.

2. SALES (§ 23) — OFFER BY CORRESPONDENCE — ACCEPTANCE.

Where, after preliminary negotiations for the sale of rails and angle bars, the seller offered by telegram to sell about 1,000 tons at $20, and the buyer by telegram accepted the offer subject to inspection, and the seller by telegram accepted the buyer's proposition, and stated that he mailed contract 500 tons shipment 30 days, and 500 tons shipment 60 days, there was no contract to sell, since the buyer's telegram introduced a new condition as to inspection, and the seller's second telegram added the new terms of time of shipment and the reduction of the contract to writing.

3. SALES (§ 23) — OFFER — ACCEPTANCE.

Where a seller's telegram purporting to accept a buyer's proposal suggests that a written contract is being mailed, the seller's acceptance is qualified by the contract prepared and forwarded, and until it is executed there is no contract between the parties.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Action by the Houston & Brazos Valley Railroad Company against the Jos. Joseph & Bros. Company. From a judgment for plaintiff, defendant appeals. Reversed.

Lyon & Swarts and D. D. Currie, all of St. Louis, for appellant. Robt. C. Powell, of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff through an alleged breach of contract. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff is an incorporated railroad company, and defendant, incorporated, is engaged in the business of selling railroad supplies. It is asserted by plaintiff that it entered into a written contract with defendant on July 9, 1908, whereby defendant bound itself to deliver to it at Boston, Mass., 1,000 tons of rails and angle bars at the price of $20 per ton; that defendant breached this contract, and refused to deliver the rails in accordance therewith. Because of this plaintiff went into the market, and purchased other rails at an increased price to its damage in the sum of $1,266.50, for which amount judgment was given. The contract of purchase relied upon, if one appears at all, is to be found in certain letters and telegrams passing between the parties. It is insisted by defendant that the minds of the parties never met with respect to the subject-matter of the controversy, and therefore no contract appears. Of course, if this argument is sound, the judgment for plaintiff may not be sustained, for, if there is no contract, there can certainly be no breach entailing a right to recover damages thereon.

The authorities are agreed as to the necessary elements of a contract entered into by letter or telegraphic correspondence. It is said: "If one person by letter proposes to bind himself by contract and states the subject-matter and terms of the contract, the party to whom the proposition is made must, within a reasonable time after the receipt of the letter, accept the proposition as made. The acceptance must comprehend the entire proposition, and must not qualify its terms or subject-matter. If the acceptance in any material way differs from the original proposition, it amounts to a rejection of the offer." In other words, any variance in the acceptance as by introducing a new term of the contract operates as a rejection of the offer, and frequently serves to submit an entirely new proposition in lieu of it. See Cangas v. Rumsey Mfg. Co., 37 Mo. App. 297, 307; Bailey & Smith v. Moorhead, 122 Mo. App. 268, 99 S. W. 39; Gaus & Sons Mfg. Co. v. Chicago Lumber, etc., Co., 115 Mo. App. 114, 92 S. W. 121. It is said in 9 Cyc. 267: "An acceptance, to be effectual, must be identical with the offer and unconditional. Where a person offers to do a definite thing and another accepts conditionally or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat, or it is a counter proposal, and in neither case is there an agreement." With these precepts in mind, we will set out and examine the relevant correspondence relied upon to reveal a contract.

For the sake of brevity, a portion of this correspondence which at most is but introductory may be properly summarized as follows: On June 28, 1908, plaintiff wrote defendant that it was in the market for 500 or 600 tons of steel rails at about $21.50 per ton f....