McCormick Harvesting Mach. Co. v. Richardson

• Decision Date: 18 October 1893
• Parties: MCCORMICK HARVESTING MACH. CO. v. RICHARDSON.
• Court: Iowa Supreme Court

89 Iowa 525

56 N.W. 682

MCCORMICK HARVESTING MACH. CO.

v.RICHARDSON.

Supreme Court of Iowa.

Oct. 18, 1893.

Appeal from district court, Kossuth county; George H. Carr, Judge.

Action on a written order for binding twine. Verdict and judgment for defendant. Plaintiff appeals.Soper, Allen & Morling, for appellant.

Danson Bros. and Parker & Richardson, for appellee.

KINNE, J.

1. The petition alleges that on January 31, 1891, the defendant entered into the following written order:

“January 31st, 1891. Mr. W. S. Krebs, Albert Lea, Minn.: Please ship McCormick binder twine as follows:

+-------------------------------------------------------------------------+
                ¦167 bales Standard Mixed, 5 lb. balls, 60 lbs. each          ¦10,020 lbs.¦
                +-------------------------------------------------------------+-----------¦
                ¦50 bales Pure Sisal, 5 lb. balls, 60 lbs. each               ¦3,000 lbs. ¦
                +-------------------------------------------------------------+-----------¦
                ¦117 bales New Zealand, 1/2 and 1/2, 5 lb. balls, 60 lbs. each¦7,020 lbs. ¦
                +-------------------------------------------------------------+-----------¦
                ¦                                                             ¦20,020 lbs.¦
                +-------------------------------------------------------------------------+
                

--To M. Richardson, Algona, Iowa, on or about May 1st, by C. & N. W. Ry., for which I agree to pay, F. O. B. cars in Chicago, as follows: Standard Mixed, ten and one-half cents per pound; Pure Sisal, nine cents per pound; New Zealand, nine and a quarter cents per pound; net cash on or before October 1st, one-half, and November first, balance, next. [Signed] M. Richardson.”

That Krebs, to whom the order was addressed, was the general agent of plaintiff, having charge of its business at Algona, Iowa; and that defendant knew he was ordering said twine of plaintiff through said general agent. That Krebs gave the order to plaintiffs, who accepted the same, purchased twine to fill the same, and on May 1, 1891, thereafter, shipped said twine to defendant in pursuance of said order. That after the arrival of said goods at Algona, and about June 1, 1891, defendant refused to receive the goods, whereupon plaintiff caused the same to be sold to the highest bidder, after due notice, and applied the proceeds of such sale, less the expense of selling and the freight, upon the contract price of the goods. That the amount so applied was $1,555.65, leaving a balance due plaintiff of $517.12, for which judgment is prayed. Defendant answered, admitting that he signed the order, that the contract price was as is stated in the order, and that plaintiff sold the goods after they arrived at Algona; denies all other allegations in the petition. The defenses set up in the second and third divisions of the answer were not submitted to the jury, as no evidence had been offered to sustain them. The fourth division of the answer is a general denial. In an amendment to the answer the defendant admits the signing and delivery of the order, and avers that at said time it was orally agreed between defendant and plaintiff's agent, Strouse, who took the order, that it should be sent to plaintiff, or its general agent, Krebs, at Albert Lea, Minn., for approval and acceptance of plaintiff, and the same was so sent. That plaintiff received the order about February 2, 1891, and prior to June 1, 1891, did not inform or notify defendant that said order was accepted, or that the goods would be shipped, and defendant had no knowledge that the goods would be shipped or order accepted until he received notice that they were shipped, which was about June 1, 1891. That said order was not accepted within a reasonable time after same was received by plaintiff, and there was no contract between plaintiff and defendant by reason thereof.

2. The plaintiff contends that the writing (heretofore set out) was a contract of sale, and binding upon both parties from the date of its execution. The defendant insists that the writing was a mere request, proposal, or order, which was not binding until accepted or acted upon by the plaintiff, and that it might be recalled, rescinded, or revoked at any time prior to its acceptance. The court construed the writing as contended for by the defendant. The correctness of the court's action is raised by objections to testimony; also by exceptions to certain instructions given, and to the refusal of the court to give instructions asked by plaintiff. The material question in the case is as to the proper construction of the writing. It is said in Goodpaster v. Porter, 11 Iowa, 163: “A contract includes a concurrence of intention in two parties, one of whom promises something to the other, who, on his part, accepts such promise; hence consent or acceptance is indispensable to the validity of every contract.” “Mutual consent is requisite to the creation of a contract, and it becomes binding when a proposition is made on one side and accepted on the other.” 2 Kent, Comm. 477; 1 Pars. Cont. 475. “A mere offer, not assented to, constitutes no contract, for there must be not only a proposal, but an acceptance thereof. So long as a proposal is not acceded to, it is binding upon neither party, and may be retracted.” 1 Story, Cont. § 490. “Where there is a written offer to sell, an acceptance constitutes the agreement, if the offer is still standing; and it is presumed to be so until the time fixed, or, if none were appointed, till it is expressly revoked or countervailed by a contrary presumption. * * * A bargain is closed where nothing mutual remains to be done to give either party the right to have it effected. Until both parties are agreed, either may withdraw an offer which he has made.” Hil. Sales, § 20. “A proposal or offer, therefore, must in some way be accepted to constitute a sale.” Benj. Sales, (Bennett's Ed. 1892, Amer. Notes,) p. 73. It has been held that such a writing does not constitute a contract until accepted or acted upon, and that prior thereto it may be withdrawn. Johnson v. Filkington, 39 Wis. 65;Church v. Sherman, 36 Wis. 404;Refining Co. v. Miller, (S. D.) 47 N. W. Rep. 962; Morris v. Brightman, (Mass.) 9 N. E. Rep. 512; Stensgaard v. Smith, (Minn.) 44 N. W. Rep. 669. See, also, Greve v. Gauger, 36 Wis. 369;Historical Co. v. Schmidt, (Wis.) 14 N. W. Rep. 822;Graff v. Buchanan, (Minn.) 48 N. W. Rep. 915;Thomas v. Greenwood, (Mich.) 37 N. W. Rep. 196;Etheredge v. Barkley, (Fla.) 6 South. Rep. 861. In the light of these elementary principles and of the cases cited it seems clear that the writing in question does not constitute a contract in the absence of its acceptance, or of any action under it by the party whose duty it is to accept. It does not purport to be a contract between the parties. By it plaintiff was not obligated to do anything on its part. Plaintiff does not undertake, by the terms of the writing, to ship the twine on the proposed conditions. It is merely a request or a proposition from defendant to plaintiff that if the latter will ship certain goods he will pay a certain sum therefor at a fixed time. It may be said to be an order, but it lacks an essential element of a contract,--mutual assent. Being only a request or order, which required acceptance by the plaintiff to give it the force of a contract, it follows that it might be withdrawn or countermanded at any time prior to its being so accepted. We do not say that the acceptance must be a formal one. The acceptance might be shown by proving an act done on...