Mueller v. Bethesda Mineral Spring Co.

• Decision Date: 20 November 1891
• Citation: 50 N.W. 319,88 Mich. 390
• Court: Michigan Supreme Court
• Parties: MUELLER v. BETHESDA MINERAL SPRING CO.

50 N.W. 319

88 Mich. 390

MUELLER v. BETHESDA MINERAL SPRING CO.

Supreme Court of Michigan

November 20, 1891

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Action on contract by Jenet F. Mueller, administratrix, against the Bethesda Mineral Spring Company. From a judgment for defendant, directed by the court, plaintiff appeals. Reversed.

Henry M. Duffield, for appellant.

Conely, Maybury & Lucking, for appellee.

MCGRATH, J.

Plaintiff's intestate had been in the drug business in the city of Detroit for some years, and for a year before the making of the alleged contract sued upon had been selling Bethesda Mineral Spring water, purchased from defendant. In October 1887, defendant wrote to plaintiff's intestate the following letter: "Waukesha, Wis., Oct. 3rd, 1887. Mr J. C. Mueller, Detroit, Mich.-Dear Sir: Inclosed find bill and B. of L. for water sent to-day. Our traveling man, J. R Smith, has informed us of your proposition, which we have considered, and have decided to make you the following offer which we believe is the offer you make us, as we understand it: We will furnish you the plain water in barrels of 42 gallons, f. o. b. cars here, at $5 per barrel; and if from October 1st, 1887, to October 1st, 1888, our sales to you shall amount to $500, we will credit your account with $40, which amount, it is understood, you have spent for advertising the water; but, if our sales to you for the above-mentioned period shall not amount to $500, then we are to allow you nothing for advertising, and you are to pay us in full for each and every bill of goods. Of course we will not credit your account with the $40 for advertising until the sales shall have reached the necessary $500. We believe if you spend $40 in judicious advertising, that you will have no trouble in bringing up your sales to $500 a year, and thereby make the Bethesda business a profitable one for you as well as for ourselves. If you accept this offer, please advise us by return mail, and this letter will be our agreement with you, as soon as we receive your acceptance of it. Trusting you will consider the matter favorably, and awaiting your reply, we are, very truly yours, B. M. S. Co. HOWE." To which Mueller replied as follows: "Detroit, Mich., Oct. 10, 1887. Bethesda M. Sp. Co.-Gents: Your favor of the 8th inst. received. Your agent's statement is correct as far as it goes, but it looks like playing Hamlet with the ghost left out. I am to be your agent agreed upon, your sole agent for the city and surrounding parts. I am to receive profits and credit on all plain water sold about here, direct or indirect. Please inform me of your approval of this condition, and I consider the contract ratified. Yours, truly, J. C. MUELLER." Defendant, in response, sent the following: "Waukesha, Wis., Oct. 12th, 1887. Mr. J. C. Mueller, 120 Woodward Avenue, Detroit, Mich.-Dear Sir: Yours of the 10th at hand. Excuse us for leaving out the 'ghost.' We will make you the sole agent for Detroit, and for all places within a radius of 25 miles from Detroit; and we will ship no plain water to any one in your territory but yourself. Trusting that this makes our offer all satisfactory, and complete, we are, very truly yours, B. M. S. Co. M." No further correspondence was had between the parties until May, 1888, when defendant wrote the following letters to Mueller: "Waukesha, Wis., May 9th, 1888. Mr. J. C. Mueller, Detroit, Mich.-Dear Sir: We have just given Bassett & L'Hommedieu, of your city, the sole agency for Detroit. There was about one-tenth of the water being sold in Detroit that there should be, and we felt it but justice to ourselves to establish an agency that would push the water. We trust you will favor them with your order when in need of Bethesda, and, thanking you for your past patronage, we are, very truly yours, B. M. S. Co. H." "Waukesha, Wis., May 9th. Mr. J. C. Mueller, Detroit, Mich.-Dear Sir: Yours of the 9th at hand. We will be unable to fill your order, as we wrote you yesterday that we had made other engagements. Bassett & L'Hommedieu's report that they are sole agents is true. There is no...