Mintzer & Kneisler, Inc. v. Schwarzschild & Sulzberger Co. of America
| Decision Date | 20 February 1914 |
| Docket Number | 31-1913 |
| Citation | 55 Pa.Super. 534 |
| Parties | Mintzer & Kneisler, Inc., Appellant, v. Schwarzschild & Sulzberger Company of America |
| Court | Pennsylvania Superior Court |
Argued October 9, 1913 [Syllabus Matter]
Appeal by plaintiff, from judgment of C.P. No. 4, Phila. Co.-1910 No. 2,717, on verdict for defendant in case of Mintzer & Kneisler, Inc., v. The Schwarzschild & Sulzberger Company of America.
Assumpsit for failure to deliver goods. Before Audenried, J.
The facts are stated in the opinion of the Superior Court.
The court charged in part as follows:
As I said, there is no doubt about the shipment and delivery of the 1,982 lbs. of hog casings. The first question that the case presents is the question what contracts there were between Schwarzschild & Sulzberger on the one side and Mintzer & Kneisler on the other. It is claimed by the latter that there were two contracts. One was made by word of mouth, a sort of memorandum of it was afterwards written out. And the other was, they say, made in writing. The first I have referred to related to the immediate delivery of twenty-five barrels of hog casings, and the second referred to the delivery during a period of sixty days of twenty-five barrels more of hog casings. I charge you as a matter of law, that you need not concern yourselves with this so-called written contract, in relation to the future delivery of twenty-five barrels of hog casings. I think that we are justified in dropping that out of the case, and for this reason. Mr. Corvin, the salesman of Schwarzschild & Sulzberger, during his negotiations with Mintzer & Kneisler, informed that firm that he had no authority whatever to make contracts for future deliveries. They understood that perfectly. He told them, it is true, that he thought he could get certain terms and prices for them for a future delivery of twenty-five barrels of hog casings, but he said that he had to consult the principal office of the corporation that he represented, and get authority to contract from that source. This, I think, was about January 18, 1910.
Verdict and judgment for defendant for $ 759.35. Plaintiff appealed.
Error assigned was portion of charge as above, quoting it.
Affirmed.
A. S. Longbottom, with him Robert J. Byron, for appellant. -- The direction of the court, in charging the jury, that they should disregard the contract for future delivery, was equivalent to binding instructions for defendant as to that portion of plaintiff's claim, and was clearly erroneous, because the testimony relating to both contracts raised issues of fact which should have been submitted to the jury: Woolman v. Ice Co., 18 Pa.Super. 596; Baltzell v. Cook, 19 Pa.Super. 490; Bucklin v. Davidson, 155 Pa. 362; Hill v. Trust Co., 108 Pa. 1; Folsom v. Cook, 115 Pa. 539; Codding v. Wood, 112 Pa. 371; Mildren v. Steel Co., 90 Pa. 317; Snyder v. Steinmetz, 6 Pa.Super. 341; Hineman v. Matthews, 138 Pa. 204; Wenrich v. Heffner, 38 Pa. 207; Morris v. Morris, 8 Pa.Super. 116; Gates v. Watt, 127 Pa. 20; Kelly v. McGehee, 137 Pa. 443; Baker v. Gas Co., 157 Pa. 593.
The testimony shows that Corvin had been held out by Schwarzschild & Sulzberger Company to Mintzer & Kneisler, Incorporated, as its salesman, and as such authorized to sell hog casings, and that this and former sales made by Corvin to appellant had been ratified by his principal, therefore all of the facts and testimony surrounding and incident to the making of the two contracts should have been submitted to the jury: Rheinstrom v. Brewing Co., 28 Pa.Super. 519; Adams Express Co. v. Schlessinger, 75 Pa. 246; Grasselli Chemical Co. v. Purchasing Co., 22 Pa.Super. 426; McCullough v. Ins. Co., 2 Pa.Super. 333; Imbrie v. Insurance Co., 178 Pa. 6; Ritchie v. Mfg. Co., 173 Pa. 447; Watson v. Lukins, 126 Pa. 630; Straub Brewing Co. v. Bonistalli, 5 Pa.Super. 415; Chicago Cottage Organ Co. v. McManigal, 8 Pa.Super. 632; Landes v. Insurance Co., 190 Pa. 536.
Wm. F. Berkowitz, with him Samuel W. Salus, for appellee. -- The acceptance of an offer must be unconditional and identical with the terms of the offer: Slaymaker v. Irwin, 4 Whart. 369; Commercial Bank of Cincinnati v. Pleasants, 6 Whart. 375; Bruggmeman v. Larzelere, 14 W.N.C. 108; Allen v. Kirwan, 159 Pa. 612; Sparks v. Pittsburg Co., 159 Pa. 295; Merrick Thread Co. v. Shoe Mfg. Co., 19 W.N.C. 573; Greene v. Ins. Co., 91 Pa. 387; Thrall v. Wilson, 17 Pa.Super. 376; Fee v. Adams Express Co., 38 Pa.Super. 83.
Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
The cross suits begun by the parties to this appeal respectively were consolidated by an order of the court below and tried as one action. In the case in which the appellee was plaintiff, it sought to recover the price of five barrels of hog casings sold and delivered to the appellant. The receipt and use by the latter of this merchandise were not in dispute, the contention of the parties, in this respect, being as to the price which the purchaser was to pay. The appellant, in its action, sought to recover damages for the breach of two alleged contracts which it claimed had been entered into by the appellee. It appears, from the testimony offered by the appellant, that after a verbal contract had been made by its officers with an agent of the appellee for the sale and purchase of twenty-five barrels of casings for immediate delivery, they sought to make a further contract for a like quantity, twenty-five barrels, for future delivery. They were told by the agent he had no authority to quote prices for future deliveries, but would have to take up that question with his principal at Chicago. The purchasers were anxious to have the same price for the goods that they claimed was quoted for immediate delivery. The agent told them he thought he could so manage it, but must submit the matter to headquarters. He shortly thereafter returned with a proposition in writing from his principal which he said he was authorized to execute. This written proposition offered the sale of twenty-five barrels of the desired product for delivery within sixty days at the price of thirty-six cents per pound with the following notation, " 40% salt."
We do not understand it to be now denied that the meaning of the proposition so tendered was that each 100 pounds to be paid for at the price named would contain a proportion of salt necessarily used for the preservation of the product not to exceed forty per cent. The appellant declined to accept the proposition as tendered, but as a result of a conversation with the agent the latter was induced to believe that the substance of the proposition would not be materially changed by his adding to it the following: " less 40% off for salt." He consequently made that addition to the proposal and it was then accepted by the appellant. It is clear enough that the addition of the words quoted resulted in a reduction of the price nearly one-half. That is to say, under the proposition as made by the appellee, the purchaser would have been required to pay for every pound of the article delivered at the price named, including the necessary salt which was...
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