Newspaper Readers Service v. Canonsburg Pottery Co., 8610.
| Decision Date | 16 January 1945 |
| Docket Number | No. 8610.,8610. |
| Citation | 146 F.2d 963 |
| Parties | NEWSPAPER READERS SERVICE, Inc., v. CANONSBURG POTTERY CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Vincent M. Casey, of Pittsburgh, Pa. (Margiotti, Pugliese & Casey, of Pittsburgh, Pa., on the brief), for appellant.
William G. Heiner, of Pittsburgh, Pa. (David B. Campbell, of Canonsburg, Pa., on the brief), for appellee.
Before MARIS and GOODRICH, Circuit Judges, and SCHOONMAKER, District Judge.
The plaintiff brought suit in the District Court for the Western District of Pennsylvania to recover damages for breach of a written contract entered into between the defendant and S. R. Taylor trading as S. R. Taylor Co. The plaintiff is the assignee of S. R. Taylor Co. The district court dismissed the complaint. The primary question in controversy is whether a contract was made. The plaintiff contends that the court was not justified in its conclusion that there was no contract and was in error in dismissing the complaint upon this ground. On the other hand, the defendant urges that the order of the district court dismissing the complaint was proper not only because no contract was made but also because the contract, if it be concluded that there was one, was so indefinite and incomplete as to be unenforceable and because it was non-assignable.
We turn first to the question whether there was a contract. The plaintiff relies upon two written instruments which it has attached to its complaint as exhibits. Exhibit "A," which contains the offer, reads:
Exhibit "B," upon which the plaintiff relies as an acceptance of the offer, reads:
This will confirm our contract made today wherein you agree to ship us a minimum of Two Carloads or equivalent, of Dinnerware per week commencing within Two weeks of date that we send you shipping instructions. This Dinnerware to be packed and shipped per our specifications.
We have already selected three patterns that we will put into operation at once. These are No. 1608 — 1584N and `Dorthea.'
In order to make up our advertising forms will you therefor please ship at once via Express the following unit items of each of these patterns to me in New York as follows:
The district court examined these exhibits and noted that whereas Exhibit "A" contained an offer to make deliveries to begin approximately September 1st, the responsive provision in Exhibit "B" was to accept deliveries commencing within two weeks of the date that plaintiff's assignor sent the defendant shipping instructions. The district court also noted that among the eight patterns listed in Exhibit "A" there was no pattern designated No. 1584 N, which was one of the three patterns selected in Exhibit "B". The district court concluded that these differences were so material as to amount to a rejection or counter-offer by the plaintiff's assignor of the offer made by the defendant.
We think that the district court placed undue stress upon these differences. Essentially the offer made by the defendant in Exhibit "A" was to deliver to S. R. Taylor Co. two cars of dinnerware per week with a choice of eight patterns, among which were No. 1608 and Dorthea. In Exhibit "B" S. R. Taylor Co. agreed to accept delivery of two cars of dinnerware per week, with patterns No. 1608 and Dorthea selected.1 The mutual assent which is required by law for the formation of an informal contract is thus present. There were differences, it is true, but we do not believe them to have been so material as to alter the terms of the contract which we have just described.2
Under the Pennsylvania conflict of laws rule the interpretation of a contract is determined by the law of the place of contracting. Allshouse v. Ramsay, 1841, 6 Whart. 331, 37 Am.Dec. 417; Benners v. Clemens, 1868, 58 Pa. 24. By the law of Pennsylvania a contract is made when and where the last act necessary for its formation is done. W. G. Ward Lumber Co. v. American L. & Mfg. Co., 1915, 247 Pa. 267, 93 A. 470, Ann.Cas.1918A, 451. Since in this case the final act, the acceptance, was in Massachusetts we have consulted the law of that state. Our conclusion is that when interpreted by that law Exhibits "A" and "B" formed a contract despite the variance between the terms of the two documents. Duggan v. Matthew Cummings Co., 1931, 277 Mass. 445, 178 N.E. 825.
In the case just cited the plaintiff offered to erect structural steel in a building at a stated price per ton basing the price on the present wage scale. Nothing was said about the number of tons on which the price was based, when the steel was to be ready for erection, or when shipments were to be completed. The defendant replied, The court found that this letter was an acceptance and did not purport to make acceptance conditional upon the execution of the defendant's standard form of contract, and consequently that the parties had entered into a contract.
We conclude that the defendant and the plaintiff's assignor did enter into a written contract for the sale of two cars of dinnerware per week.
We turn next to the defendant's contention that the contract evidenced by Exhibits "A" and "B" is so indefinite and incomplete as to be unenforceable. Specifically the defendant claims that the...
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