Neilson & Kittle Canning Co. v. F. G. Lowe & Co.

• Decision Date: 05 April 1924
• Citation: 260 S.W. 142,149 Tenn. 561
• Parties: NEILSON & KITTLE CANNING CO. v. F. G. LOWE & CO.
• Court: Tennessee Supreme Court

260 S.W. 142

149 Tenn. 561

NEILSON & KITTLE CANNING CO. v. F. G. LOWE & CO.

Supreme Court of Tennessee.

April 5, 1924

Appeal from Chancery Court, Davidson County; John R. Aust Chancellor.

Suit by the Neilson & Kittle Canning Company against F. G. Lowe & Co. Judgment for plaintiff, and defendant appeals. Affirmed.

Pitts & McConnico, of Nashville, for appellant.

Jeff McCarn, D. W. Cunningham, and Preston Vaughn, all of Nashville, for appellee.

CHAMBLISS J.

This bill was filed to recover damages for breach of a contract to purchase a car of canned tuna fish, and is here on appeal by defendant, Lowe & Co., from a decree awarding damages. The first assignment complains of the exclusion by the chancellor of evidence offered by defendant of a local custom that the buyer of goods of this character does not consider the contract closed until a formal contract has been signed between the parties. While this testimony was probably competent, as bearing upon the question of the state of mind or intention of the defendant, we are of opinion that its exclusion was not reversible error, because its weight is insufficient to affect materially the result, as hereinafter indicated.

It is insisted by the second assignment that there was no completed contract, and this is the determinative issue. The defendant resides in Nashville, and the complainant in California, and the negotiations were conducted largely through merchandise brokers in Memphis, by telegraphic and mail correspondence and telephone.

The rule of practical construction is invoked and the case recently decided by this court of Canton Cotton Mills v Little Brothers et al., 257 S.W. 398, among other authorities, is relied on. This rule has no application unless the terms of the contract are ambiguous, or the conditions entering into its making are so involved as to give rise to uncertainty with respect to the intention of the parties.

In the Mills Case, supra, while previous correspondence tended strongly to indicate a completed contract of sale and purchase, there was some ambiguity, and, moreover, the letter of final confirmation sought to vary materially the terms of the correspondence agreement.

If the correspondence and other communications establish with reasonable clearness a contract, then the rule invoked is inapplicable. And in giving construction to the facts presented, the rule laid down in the following language by Mr. Justice Pitney, in Empire Manufacturing Co. v Morris, 73 N. J. Law, 602, 65 A. 450, should be observed "Such a construction should be adopted, if possible, as to constitute an agreement rather than defeat an agreement."

It is well settled that a binding contract may be entered into through the medium of correspondence by letter or telegraph. Without detailing from the record, it appears that defendant, Lowe & Co., opened negotiations for this purchase through Memphis brokers, agents of complainant; that defendant authorized the brokers to make the purchase of a car or less of No. 1 potted tuna at $6.25 a case delivered at Nashville, and that by telegraph, confirmed by letter, complainant accepted this order, of which the brokers notified defendant promptly, this being September 10, 1918. It further appears that, in a letter dated September 13th, addressed to complainant, defendant recognized and approved this confirmation in the following language:

"Your brokers, Jno. T. Leonard & Sons, have confirmed us through their Memphis office for shipment through you one minimum car #1 round can, Potted Tuna Fish, at $6.25 per 4 doz. cans, delivered Nashville. We write this to ask you to send us at once by express charges collect, one case of these goods for us to use as samples to take orders by, and would also ask that you submit us your several different styles of labels, that we may make a selection that appeals to us most."

Thus a firm contract would seem to have been made, but upon receipt of the samples which had been requested, defendant wired complainant, on September 28th:

"Samples received and find not what we expected. Cancel order."

The insistence of defendant upon his right to thus cancel is rested upon the fact that, following the confirmation by wire, complainant transmitted through its Memphis agents to defendant a form of contract in writing, signed by the complainant, for execution by the defendant. This writing did not vary the essential terms of the sale, as already negotiated and confirmed, but its concluding clause was as follows:

"This contract, to be binding upon the seller, must be confirmed in writing by seller, who, however, shall not be

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