Houston & Brazos Valley Railroad Co. v. Joseph Joseph & Brother Co.

• Decision Date: 14 December 1912
• Parties: HOUSTON & BRAZOS VALLEY RAILROAD COMPANY, Respondent, v. JOSEPH JOSEPH & BROTHERS COMPANY, Appellant
• Court: Missouri Court of Appeals

152 S.W. 394

169 Mo.App. 174

HOUSTON & BRAZOS VALLEY RAILROAD COMPANY, Respondent, v. JOSEPH JOSEPH & BROTHERS COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 14, 1912

Appeal from St. Louis City Circuit Court.--Hon. George H. Williams Judge.

REVERSED.

Judgment reversed.

Lyon & Swarts and Dwight D. Currie for appellant.

(1) Judgment should have been for the defendant because there was no contract entered into between the plaintiff and defendant. The correspondence between them did not constitute a contract because there was never a meeting of the minds on the same thing in the same sense. Runyon v. Wilkinson Gaddis & Co., 57 N. J. L. 420; Sarrons v. Richards, 151 Mo.App. 656; Bailey v. Smith & Moorhead, 122 Mo.App 268; Gaus & Sons Mfg. Co. v. Lumber Co., 115 Mo.App 114; Denton v. McInnis, 85 Mo.App. 542; Mill Co. v. Craven, 76 Mo.App. 458; James & Sons v. Fruit & Jar Bottle Co., 69 Mo.App. 207; McLean v. Gymnasium Co., 64 Mo.App. 55; Rudolph v. Frick, 57 Mo.App. 400; Duke v. Compton, 49 Mo.App. 304; Robertson v. Tapley, 48 Mo.App. 239; Tufts v. Sams & Son, 47 Mo.App. 487; Cangas v. Rumsey Mfg. Co., 37 Mo.App. 297; Breitheisen v. Coffey, 15 Mo.App. 80; Wire Mfg. Co. v. Broderick, 12 Mo.App. 378; Methudy v. Ross, 10 Mo.App. 101; Bourne v. Shapleigh, 9 Mo.App. 64; Scott v. Davis, 141 Mo. 225; Egger v. Nesbitt, 122 Mo. 667; Strange v. Crowley, 103 Mo. 287; Bruner v. Wheaton, 46 Mo. 363; Reigart v. Coal & Coke Co., 217 Mo. 142; Sparks v. Pittsburgh Co., 159 Pa. St. 295; 9 Cyc. 267 and 280, 281; Winn v. Bull, 7 Ch. D. 29; Honeyman v. Marryatt, 7 H. L. Cas. 112; Mundy v. Matthews, 34 Hun, 74; Babcock v. Ormsby, 18 S.D. 358; Water Commissioners v. Brown, 32 N. J. L. 504; Glass Works v. Barnes & Co., 86 Hun, 374; Hutcheson v. Blakeman, 60 Ky. 80, 3 Metc. 80; Brown v. Railroad, 44 N.Y. 79; Marshall v. Vineyard Co., 28 N.Y.S. 62; Brauer v. Oceanic Nav. Co., 70 N.E. 863; Lyman v. Robinson, 14 Allen, 242; Lithographing Co. v. Randall, 73 F. 619; Robinson v. Weller, 81 Ga. 704; Bishop on Contracts (2 Ed.), sec. 323.

Robert C. Powell for respondent.

(1) A contract is a meeting of minds of the parties shown by concomitant circumstances. Correspondence and telegrams may constitute a valid contract when an offer and acceptance is shown. No formally drawn contract is necessary. It is the assent of the parties which gives the contract its binding force and an acceptance is not made conditional by adding words, which in truth make no difference and are immaterial, all facts considered. Oliver v. Beaumont, 1 De G. & S. 397; James v. Jenkins, 8 Ch. D. 70; Clark v. Dales, 20 Barb. 42; Brisban v. Boyd, 4 Paige, 17; Abbott v. Shepard, 48 N.H. 14; Hart v. Bray, 50 Ala. 446; Smith v. Colby, 136 Mass. 562; Vassar v. Camp, 11 N.Y. 441; Thevor v. Wood, 36 N.Y. 307; Dana v. Short, 81 Ill. 468; Thames L. & T. Co. v. Beville, 100 Ind. 309; Blaney v. Hoke, 14 O. St. 292; Highland v. Rhoades, 26 O. St. 411; Cheney v. E. Tp. Line, 59 Md. 557; Mackey v. Mackey's Admr., 29 Gratt. (Va.) 158; Fitzhugh v. Jones, 6 Munf. (Va.) 83; Calhoun v. Atchison, 4 Bush (Ky.), 261; Bell v. Offutt, 10 Bush (Ky.), 632; Haines v. Dearborn, 199 Pa. St. 474; Societe v. Old Jordan M. & M. Co., 9 Utah, 483; Matteson v. Scofield, 27 Wis. 671; Lawrence v. Railroad, 84 Wis. 427; Utley v. Donaldson, 94 U.S. 29; Alford v. Wilson, 20 F. 96; Central Tr. Co. v. Railroad, 38 F. 561; Pomeroy on Contracts, sec. 64, et seq.; Stotesburg v. Massengale, 13 Mo.App. 221; Broome v. Wright, 15 Mo.App. 406; Baldwin v. Ins. Co., 56 Mo. 154; Wilson v. Lee's Summitt, 63 Mo. 137; Riggins v. Railroad, 73 Mo. 598; Mastin v. Grimes, 88 Mo. 485; Allen v. Chouteau, 102 Mo. 309; 1 Thompson on Trials, sec. 1098; Primm v. Haren, 27 Mo. 205; Chapman v. Railroad, 146 Mo. 841; Carp v. Insurance Co., 104 Mo.App. 518; Barker v. Pub. Co., 152 Mo.App. 722. (2) As to whether or not there was a contract entered into between plaintiff and defendant must appear from all circumstances and the documents submitted in evidence as the foundation of an inference of fact. The real intention of the parties is therefore a question of fact, which, once found, the appellate court will not disturb. This case, being an action at law, comes to this court with a finding of facts by the trial court upon special request so to do. In such a case a finding of fact is in the nature of a special verdict, which this court may not interfere with on appeal, there being substantial evidence to support it. Stewart v. Grain Co., 163 Mo.App. 473; Walther v. Null, 233 Mo. 104; Walton v. Railroad, 40 Mo.App. 544; Nichols v. Carter, 49 Mo.App. 401; Rausch v. Michel, 192 Mo. 293; Jordan v. Davis, 172 Mo. 599; Sutter v. Raeder, 149 Mo. 307; Miller v. McCaleb, 208 Mo. 572; Broome v. Wright, 15 Mo.App. 410; Wright v. McPike, 70 Mo. 180; Mills v. Lewis, 8 Mo.App. 561; 1 Thompson on Trials, sec. 1098; Primm v. Haren, 27 Mo. 205; Chapman v. Railroad, 146 Mo. 481; Carp v. Insurance Co., 104 Mo.App. 518; Barker v. Pub. Co., 152 Mo.App. 722.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

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, Massachusetts, 1000 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 $ 1266.50, 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 five or six hundred tons of steel rails at about $ 21.50 per ton f. o. b. St. Louis, Kansas City or territory that would not require a higher freight rate, or $ 20 per ton f. o. b. Chicago or territory affording a similar freight rate. In reply to this letter, defendant, on July 1, wired and also wrote plaintiff to wire the exact weight of the rails it desired to purchase, and plaintiff responded by wire that it wanted 56-lb. rails. On July 2, defendant wrote plaintiff that it had a lot of 56-lb. relaying rails in the east and was figuring as to what these would cost delivered at Galveston, Texas and as soon as it obtained this information would wire plaintiff concerning it. On July 3, defendant wrote plaintiff the following letter:

"The Jos. Joseph & Bros. Co.,

St. Louis, Mo., July 3, 1908.

"Mr. Felix Jackson, V. P. & G. M.,

Houston & Brazos Valley R. R. Co.,

Velasco, Texas.

"Dear Sir:--

"We can offer you 500 tons to 600 tons of original 56-lb. relaying steel rails with the necessary fastenings for same at $ 24 per gross ton f. o. b. cars Galveston, Texas.

"These rails are offered to you subject to prior sale and we would advise you to wire us as quickly as possible as to whether you can accept them or not as we are figuring with several other parties on these rails.

"Trusting to hear favorably from you, we remain,

"Yours truly,

"THE JOS. JOSEPH & BROS. CO.

"Per A. L. MARKS."

In answer to this, on July 6, plaintiff wired defendant requesting it to quote price of 56-lb. rails f. o. b. vessel at eastern port, plaintiff to arrange shipping. Answering this message defendant wired plaintiff on the same date acknowledging receipt and offered 56-lb. rails at $ 20.50 per ton f....