Mummenhoff v. Randall

• Decision Date: 11 January 1898
• Docket Number: 1,955
• Citation: 49 N.E. 40,19 Ind.App. 44
• Parties: MUMMENHOFF v. RANDALL
• Court: Indiana Appellate Court

49 N.E. 40

19 Ind.App. 44

MUMMENHOFF v. RANDALL

No. 1,955

Court of Appeals of Indiana

January 11, 1898

From the Marion Circuit Court.

Affirmed.

Herod & Herod, for appellant.

Ferdinand Winter, for appellee.

OPINION

HENLEY, J.

On the 1st day of October, 1894, the appellee, residing at Oxford Mich., sent through the mail the following letter "Oxford, Mich., Oct. 1, 1894. Mummenhoff Co. Indianapolis, Ind. Gentlemen: Can we not get to doing some business? I quote you the following low price on potatoes, either in straight cars or in mixed, part of each kind of vegetables. Would quote you potatoes at 35 cts., rutabagos 25 cts., 62 No. carrots 35 cts., 55 No. onions, either red or yellow. The carrots are both long and yellow. The price on delivered track Indianapolis. My certified weights guaranteed within 2 per cent. Yours truly, C. L. Randall, per N. B." This letter was dictated by appellee to a stenographer, who wrote the same out on a typewriter, and by the mistake and inadvertence of the stenographer in typewriting the same from her stenographic notes she wrote in said letter the price of potatoes at 35 cts. per bushel, instead of the price of 55 cts., as was dictated to her by appellee. This letter was received by appellant at Indianapolis, Ind., on the 2d day of October, 1894, and appellant at once sent to appellee an order by mail as follows: "Indianapolis, Oct. 2, 1894. Mr. C. L. Randall, Oxford, Mich. Dear Sir: We are in receipt of your favor of the 1st inst. Please ship us two or three cars of potatoes at your earliest convenience, at price quoted. If you have good stock, we shall give you a good many of our orders. Resp'y, Mummenhoff & Co."

Appellee, upon the receipt of the said order, and being ignorant of the mistake of the stenographer, as before set out, accepted appellant's order as being an order for the number of cars of potatoes mentioned by appellant, and as being at the price of 55 cents per bushel, and on the 3d day of October, 1894, shipped to appellant one car of potatoes containing 405 1/2 bushels, and at the same time transmitted by mail to appellant at Indianapolis, Indiana, a bill therefor, in which bill the appellant was charged with the number of bushels of potatoes shipped at 55 cents per bushel. Two days afterward, on the 5th day of October, 1894, appellee shipped to appellant still another car of potatoes containing 417 5-6 bushels and transmitted by mail at the same time to the appellant a statement of such shipment in which the appellant was charged with the amount of the potatoes therein shipped at 55 cents per bushel. On the 6th day of October, 1894, appellant, having received the bills covering the two shipments of October 3d and 4th, and finding that the potatoes were therein charged to him at 55 cents, telegraphed to appellee as follows: "Indianapolis, Ind., Oct. 6, 1894. To C. L. Randall, Oxford, Mich. You offered potatoes thirty-five, billed at fifty-five. Explain. Mummenhoff & Co." The receipt of this message by appellee was his first knowledge of the mistake of his stenographer in the letter of October 2d, and neither car of potatoes having yet arrived at Indianapolis, their destination, appellee immediately telegraphed appellant as follows: "October 6, 1894. To Mummenhoff & Co., Indianapolis, Ind. My quotation was fifty-five cents delivered. Potatoes cost forty-five here. Second car on road. If can't use as billed, will give directions. C. L. Randall."

Notwithstanding appellee's telegram, appellant received, accepted, and used the two cars of potatoes, and, knowing that the quotation of 35 cents in the letter of October 2d was a mistake, refused to settle upon any basis other than thirty-five cents per bushel. Appellee began this action against appellant in the lower court, basing his first paragraph of complaint upon the facts as we have detailed them. The second paragraph of complaint demanded the reasonable value of the potatoes alleged to have been sold and delivered to appellant at his special instance and request. Appellant demurred to the first paragraph of complaint. The paragraph was held sufficient. An answer of three paragraphs was filed, to each of which appellee demurred. The lower court sustained the demurrer to the second paragraph of answer. There was a trial and a finding for appellee, and, over appellant's motion for a new trial, judgment was...