P. Berry & Sons, Inc. v. Western Union Tel. Co.

• Decision Date: 13 June 1929
• Citation: 109 Conn. 371,146 A. 501
• Parties: P. BERRY & SONS, INC., v. WESTERN UNION TELEGRAPH CO.
• Court: Connecticut Supreme Court

146 A. 501

109 Conn. 371

P. BERRY & SONS, INC., v. WESTERN UNION TELEGRAPH CO.

Supreme Court of Errors of Connecticut.

June 13, 1929

Appeal from Court of Common Pleas, Hartford County; Arthur E Howard, Jr., Judge.

Action by P. Berry & Sons, Inc., against the Western Union Telegraph Company, to recover damages for failure to deliver a telegraphic message. Judgment for plaintiff, and defendant appeals. Error, and cause remanded, with directions.

As regards telegraph company's failure to deliver order wholesaler's price quotation held not " offer" rendering order " acceptance."

Lucius F. Robinson, Jr., of Hartford, for appellant.

Philip H. La Fleur, of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

BANKS J.

The plaintiff, a wholesale distributor of fruits and produce in Hartford, had had business dealings for several years with one Moulton, a wholesale dealer in sauerkraut in Phœnix, N. Y., and prior to July 22, 1925, requested Moulton to furnish it the lowest price of sauerkraut. In answer to this request, Moulton, on July 22, 1925, sent the plaintiff a telegram which read: " Seven fifty best price we can quote." On July 24, 1925 the plaintiff delivered to the defendant a telegram addressed to Moulton, which read: " Accept two cars new kraut new casks forty five early shipment seven fifty" --the " forty-five" meaning forty-five gallons per cask, and " early shipment" meaning early shipment in the fall when the new kraut was put up. This telegram was not delivered by the defendant, which fact the plaintiff learned about September 14, 1925, and within a week thereafter purchased from Moulton two car-loads of sauerkraut, at $9 a barrel, making no effort to hold him to a contract for the purchase of the sauerkraut at $7.50 a barrel. The trial court held that the two telegrams constituted a contract between the plaintiff and Moulton, and awarded the plaintiff, as damages for the failure of the defendant to deliver the telegram of July 24th, the difference in price between two carloads of sauerkraut at $7.50 per barrel and $9 per barrel.

Plaintiff's telegram of July 24th, standing alone, was merely an order for two cars of sauerkraut at the price named, which Moulton could have accepted or not as he saw fit. Since, upon that assumption, it would have been entirely speculative as to whether Moulton would have filled the order, the plaintiff could not be said to have suffered any loss by reason of the defendant's failure to deliver the telegram. If, however, as claimed by the plaintiff, its telegram was an acceptance of an offer contained in Moulton's telegram of July 22, the two together constituted a contract, for causing the breach of which the defendant would be liable in compensatory damages. This would be so even though the telegram of July 24 was not delivered to Moulton, it being agreed that it took effect as an acceptance, if at all, upon its delivery to the defendant for transmission. The question presented then is whether, upon the facts found, an enforceable contract was entered into between the plaintiff and Moulton. If there was not, the defendant's liability for failure to deliver the telegram is limited to the amount of the toll charge for the same.

The plaintiff, having first learned by inquiry from Moulton his asking price for sauerkraut, ordered two cars of it specifying early shipment of new kraut in new casks containing forty-five gallons each. Clearly, there was no obligation upon Moulton to accept and fill this order, unless it can be said that his previous quotation of his best price for sauerkraut constituted an offer and that this order was an acceptance of the offer. So far as...