Koehring Co. v. Glowacki
| Decision Date | 03 May 1977 |
| Docket Number | No. 75-222,75-222 |
| Citation | 253 N.W.2d 64,21 U.C.C.Rep. 715,77 Wis.2d 497 |
| Parties | , 21 UCC Rep.Serv. 715 KOEHRING COMPANY, Plaintiff-Appellant, v. Jerome J. GLOWACKI, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Plaintiff-appellant Koehring Company brought this action against defendant-respondent Jerome J. Glowacki to recover on a contract allegedly entered into by plaintiff and defendant for the sale of surplus machinery.
Late in 1970, plaintiff contacted a number of potential purchasers regarding the sale of surplus machinery. Defendant visited plaintiff's plant in Springfield, Ohio, where plaintiff's agent gave defendant a list of fourteen items of surplus equipment available for sale. Defendant proceeded to inspect said items at said plant.
Subsequently plaintiff's agent circulated a letter dated January 21, 1971, listing nine items available for sale to be sold on an "as is, where is" basis. Defendant telephoned plaintiff's agent inquiring as to price and indicating a desire to bid on the surplus machinery. Plaintiff's agent responded that defendant must bid $16,500 and that the bid must be in the form of a telegram.
Defendant telegraphed his bid of $16,000, the telegram sent by one James A. Garland at defendant's request. Plaintiff's agent called defendant to inform him the $16,000 bid was in error and that the bid must be in the amount of $16,500. Whereupon a second telegram was sent by defendant, bidding $16,500, but including the statement "FOB, our truck, your plant, loaded." Koehring responded with a telegram "accepting" the bid, but stating the condition that the machinery was sold on an "as is, where is" basis.
Plaintiff's representative testified he telephoned defendant four or five days after the exchange of telegrams, seeking to "repurchase" one of the items of surplus machinery involved. This representative further testified that defendant refused the offer to repurchase and informed plaintiff's agent that the machine tools would be removed by Garland Equipment Company. Defendant testified that, when telephoned, he informed plaintiff's representative that he was no longer interested in the machinery, but that one William Garland might want to make the purchase.
The machinery was not picked up on February 15, 1971, the pickup date specified by plaintiff. Subsequently another employee of plaintiff telephoned defendant. This employee testified that he was informed by defendant that William Garland would remove the equipment. Defendant testified he did not remember this conversation.
Sometime in February, 1971, Garland came to plaintiff's Ohio plant to photograph the surplus equipment items. On March 8 and 9, 1971, Garland removed either four or six pieces of equipment from the plant. On April 14, 1971, the remaining pieces were removed by Wagner Service, acting for Garland. Plaintiff never discussed payment with defendant or Garland prior to the machinery removal.
As to plaintiff's claim of an agency relationship between defendant and William Garland, Garland testified that he had entered into an agreement, apparently oral, to purchase the machinery from defendant. Garland also testified that defendant had "an inside track" with plaintiff because of prior purchases of surplus equipment. Defendant was to receive a finder's fee of $1,000 or $1,500 from Garland on the purchase.
Garland also stated that defendant told him the machinery would not have to be paid for when moved and that defendant would work out payment terms with plaintiff. Defendant testified that he put Garland in contact with plaintiff in exchange for Garland's promise to pay him a finder's fee. He stated this was a common practice in the surplus equipment sales field.
The trial court held that no contract existed between defendant and plaintiff, that no agency existed between defendant and Garland, and that the contract was between plaintiff and Garland. Judgment dismissing plaintiff's complaint was entered, and plaintiff appeals.
Thomas R. Fahl and Brendel, Flanagan & Sendik, S.C., Wauwatosa, for plaintiff-appellant.
Jerry R. Albert, Timothy J. Strattner and Murphy, Shapiro, Gorsky & Dubin, Milwaukee, for defendant-respondent.
The trial court held (1) there was no valid written contract between plaintiff and defendant for the sale of the surplus machinery; and (2) there was no principal-agent relationship between defendant and one William Garland which would bind defendant by Garland's acceptance of the machinery involved.
As to the exchange of telegrams upon which plaintiff relies to establish a contract, the trial court in its memorandum opinion found:
The trial court noted that the language in plaintiff's telegram differed substantially from the offer contained in defendant's telegram or offer. Therefore, the trial court concluded, the plaintiff's reply telegram was ". . . a rejection of the offer and a counteroffer unless the difference in language is saved by reason of the operation of section 402.207 of the Wisconsin Statutes." That statute addresses the matter of additional terms or terms different from those offered or agreed upon, and provides that additional terms are to be construed as proposals for addition to the contract unless they materially alter it. 2
In a fairly recent case, the Air Products Case, this court dealt with whether a disclaimer or limitation of liability clause in an "acknowledgment or order" materially altered the agreement of the parties. 3 However, that case dealt with an exchange of printed forms, not an exchange of telegrams which represented bargaining positions as in the instant case. Thus the full language of sec. 402.207(1) applied in the Air Products Case, whereas in the instant case we elect to apply only the language after the comma of sec. 402.207(1) which provides: "unless acceptance is expressly made conditional on assent to the additional or different terms." 4 Additionally, in the case before us, there was no prior oral agreement between the parties. If that were the situation and the exchanged telegrams merely confirmed that fact, then we would look to sec. 402.207(2), Stats., as was done in Air Products, to determine whether to include the additional or different terms. 5
As the trial court properly held in the present case, before we reach the question of additional or different terms added to a contract, we must first inquire whether or not any contract ever existed. Here the defendant's telegram was an offer to purchase at a price of $16,500 "FOB, our truck, your plant, loaded." Plaintiff's response was a counteroffer to sell at the price of $16,500 on an "as is, where is" basis. There was no "meeting of the minds" or agreement of the parties prior to the exchange of telegrams. No such "meeting of the minds" or agreement resulted from the exchange oftelegrams. This being so, we do not reach the issue as to whether additional or differing terms do or do not destroy an agreement of the parties since there is no valid contract in the first place.
In the case before us, we deal with an initial and continuing absence of agreement between the parties as to whether the sales price included loading risks and costs. The second telegram of defendant, offering $16,500 "FOB, our truck, your plant, loaded," was an offer. The responding telegram of plaintiff, all tools sold on an "as is, where is" basis, while labeled an acceptance, was actually a rejection of the defendant's offer and a counteroffer. 6 This being the situation, it follows, as the trial court concluded, that there was here no contract or agreement between these two parties either preceding or derived from their exchange of telegrams.
As a separate and independent basis for recovery, plaintiff asserts that the relationship of principal-and-agent existed between the defendant and William Garland, who accepted the surplus machinery involved. As to whether Garland was such agent for the defendant when he received and accepted the items involved, the trial court made the following finding of facts:
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