Midwest Engineering & Const. Co. v. Electric Regulator Corp.
| Citation | 435 P.2d 89 |
| Decision Date | 12 September 1967 |
| Docket Number | No. 40804,40804 |
| Parties | MIDWEST ENGINEERING & CONSTRUCTION COMPANY, Inc., a Corporation, and Patterson Steel Company, a Corporation, Plaintiffs in Error, v. ELECTRIC REGULATOR CORPORATION, a Corporation, Defendant in Error. |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court
1. Where a person offers to do a definite thing, and the party to whom the offer is made accepts conditionally, or introduces a new and material term into the acceptance, his answer constitutes a counter proposal, and there is no agreement; but when the party to whom the counter proposal is made accepts it, such counter proposal and acceptance constitute a binding contract.
2. Acceptance of a counter proposal may be implied, as well as expressed; and the conduct of the defendant purchaser, as shown by the undisputed evidence in this case, was such as to join an issue for the jury's determination, as to whether said defendant impliedly accepted plaintiff's counter proposal, or whether there was no such acceptance and consequently no contract ever entered into between them.
3. A Vendee's repudiation of his contract with the vendor obviates the necessity of the vendor tendering performance on his part, and such repudiation that amounts to an absolute refusal to perform at any time, gives the vendor the option of treating the entire contract as broken, and suing the vendee for damages as for a total breach.
4. Where there is no market for articles manufactured especially for vendee under his contract to purchase, and he repudiates the contract after they have been manufactured, the vendor's damages may be based upon the contract price.
5. Where M. Corporation contracted to purchase meters and regulators to be fabricated for, and delivered to, it, in installments over a period of time, by the E. Corporation; and later, after E. had commenced performing the contract, P. purchased stock in M. and guaranteed payment for said purchase, but M. repudiated the purchase contract before performance was completed, and E. thereafter recovered damages for breach of the contract against both M. and P., as defendants; and, on defendants' appeal, their only answers to plaintiff's contention that the guaranty letter was presumptive evidence of a consideration for the guarantee, were directed at other asserted infirmities of the claimed guaranty contract, such presentation did not show the discharge of the burden of proof referred to in Tit. 15 O.S.1961, § 115.
6. Knowledge, no matter how acquired, is notice of acceptance of a guaranty, and it may be inferred from facts and circumstances warranting such a conclusion.
7. In an appeal of a case to the Supreme Court, the parties are bound by the theories upon which they tried it in the lower court, and cannot secure reversal on an error they invited there, or by assuming a position inconsistent with that taken there.
Appeal from the Court of Common Pleas of Tulsa County; Tom F. Shaw, Trial Judge.
Action by plaintiff which fabricated meters and regulators for sale to one of the defendants, against said defendant and another defendant, which allegedly guaranteed the other's purchase of the meters and regulators, seeking recovery of damages allegedly suffered by plaintiff on account of a breach of the purchase contract. After verdict and judgment for plaintiff against both defendants, and the overruling of their separate motions for a new trial they appealed. Affirmed.
Carl G. Engling, Steele & Downey, by, George S. Downey, Tulsa, for plaintiff in error Patterson Steel Co.
Best, Sharp, Thomas & Glass, Jack M. Thomas, Joseph A. Sharp, Tulsa, for defendant in error.
This appeal involves a controversy growing out of the failure, and refusal, of plaintiffs in error, hereinafter referred to collectively as 'defendants', or individually as 'Midwest', a Tulsa corporation, and 'Patterson', another Tulsa corporation, to pay for a number of the 611 Kilowatt Meters and Voltage Regulators Midwest had ordered from defendant in error, a Connecticut corporation, hereinafter referred to as 'plaintiff', to enable Midwest to comply with a U.S. Government contract it had obtained through the U.S. Army Corps of Engineers with district headquarters at Tulsa.
When Midwest, after receiving some of the Meters and Regulators, refused to accept shipment of any more of them, and attempted to rescind its alleged contract with plaintiff, plaintiff sought, by the present action, to recover, as damages, on account of Midwest's alleged breach of said contract, the so-called 'contract price' not only of the Meters and Regulators, it had shipped Midwest, and had not been paid for, but, in addition, such price of others of the 611 Meters and Regulators it had manufactured, and/or assembled, especially to furnish Midwest for its said Government contract. Plaintiff's asserted cause of action against Patterson was based on the theory that it had guaranteed that the Meters and Regulators would be paid for. The sum for which plaintiff sought judgment was $9,103.24, plus interest and costs of the action.
Midwest's U.S. Government contract is referred to, and identified by, the following letters and figures: 'DA--11--184--ENG--16168'. The written memorandum of plaintiff's alleged contract with Midwest is a 'Purchase Order' numbered '758--77' and dated August 14, 1958, which Midwest mailed to, and which was received by, plaintiff at its Norwalk, Connecticut, headquarters on August 18, 1958. The material parts of the 'Purchase Order' are as follows:
The day it received the above quoted Purchase Order, plaintiff's sales manager, Mr. Walter, wrote Mr. R. E. Parker, Midwest's Director of Purchasing, the following letter:
'Many thanks for your Purchase Order calling for 611 Voltage Regulators and 611 Kilowattmeters.
Inspection Group to ask for source inspection on regulators; they being in agreement that the end item must pass the specifications and any previous testing has no value to normal modifications of the product after shipment.
'If you see any difficulty in accomplishing this change, we would like to discuss this with you in order to avoid this extra procedure.
Thereafter, in September, 1958, Patterson purchased the majority of stock in the Midwest corporation, and Mr. P. W. Patterson became Midwest's Vice-President, also. About the same time, plaintiff manufactured 2 prototypes, or 'pilot models', of the above mentioned Voltage Regulators and simultaneously with its shipment of them, mailed to Midwest its invoice dated September 23, 1958. The body of the invoice was as follows:
-----------------------------------------------
Your Order No. Our Order No. Terms
758-77 13394 See reverse side
-----------------------------------------------
-------------------------------------------------------------------------------
QUANTITY DESCRIPTION PRICE AMOUNT
-------------------------------------------------------------------------------
611 611 Voltage Regulators, Part 13461 consisting
of:
REGOHMS, Type 3WCD115, part 13461-1 $24.50 ea. net
Size 3 Chassis, part 13461-2 (Moisture &
Fungus
proof), with voltage adjusting rheostats $20.50 ea. net
DELIVERY: 2 pilot models Sept. 23, 1958.
Balance
held for receipt of your approval.
Production can start approximately
four weeks from receipt of written
approval of pilot models.
FOB Norwalk, Conn.
We do not recognize terms and conditions printed on the
purchase order which enlarge the liability or
responsibility
of the Seller as set out in this acceptance."
According to a statement of Midwest's account, which was introduced in evidence as defendant's Exhibit No. 2, the above mentioned pilot models were paid for (on the basis of their contract price, in the total amount of $91.64) by a remittance Midwest forwarded to plaintiff, and plaintiff credited to the account, on October 14, 1958.
Under date of November 24, 1958, Mr. P. W. Patterson's brother, Mr. N. R. Patterson, who was the Patterson Company's President, wrote a letter, on behalf of Patterson that was received by plaintiff on November 28th, and read, in part, as follows:
'Pursuant to 'phone conversation of this morning with Mr. W. H. Walters of your sales department, we are writing this letter to state...
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