Pearce v. Dulien Steel Products, Inc., 28611.

• Decision Date: 03 July 1942
• Docket Number: 28611.
• Citation: 127 P.2d 271,14 Wn.2d 132
• Parties: PEARCE v. DULIEN STEEL PRODUCTS, Inc.
• Court: Washington Supreme Court

127 P.2d 271

14 Wn.2d 132

PEARCE v. DULIEN STEEL PRODUCTS, Inc.

No. 28611.

Supreme Court of Washington

July 3, 1942

Department 2.

Action by R. O. Pearce, doing business as United Steel & Rail Company, against Dulien Steel Products, Incorporated, to recover damages for breach of alleged contract. From an order dismissing the action after a demurrer to his amended complaint had been sustained, plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; Chester A. batchelor, judge.

Cosgrove Terhune & Schlosstein, of Seattle, for appellant.

Robbins & Rickles, of Seattle, for respondent.

BLAKE Justice.

This is an appeal by plaintiff from an order dismissing the action after a demurrer to his amended complaint had been sustained.

It is alleged in the amended complaint: That respondent is engaged in the business of buying and selling steel products; that on October 22, 1940, appellant, by letter, offered to buy two cars of '70 lb. rail and angle bars at this time for $15.00 per gross ton f. o. b. Armstead * * *.' To his proposal, respondent replied under date of October 23, 1940 'We would not be interested in selling two * * * cars at any price of $15.00, but would accept price on two cars to help you out at $17.50 G. T.' On November 9, appellant responded to this counter proposal as follows:

'Pursuant to my telephone conversation with Mr. White today and in answer to your letter of October 23, please be advised that we will purchase from you two carloads of No. 1 70-pound relay rail at $17.50 per gross ton, f. o. b. cars, Armstead, Montana.

' Hunt will inspect this rail for our customer and will probably designate rail to be rejected or accepted.' (Italics ours.)

In response to this letter, respondent wrote appellant a letter on November 12, in which, among other things, it was stated: '* * * we do not agree to the matter of Hunt's inspection. Our experience with this inspection in the past has been unsatisfactory in some cases and we do not wish, in filling your order on the two cars, to be put to any expense whatever in the matter of preparing the RAIL for shipment. We are not selling you subject to Hunt's inspection No. 1.' (Italics ours.)

To this, under date of November 15, appellant replied: 'In answer to your letter of October 23rd please be advised that if Hunt is to inspect the two cars of rail for my customer, any expense incident thereto will be borne by the customer or myself.'

Replying to this letter on November 18, respondent said: 'We * * * wish to reiterate * * * our letter of November 12, and we will not under any circumstances on this order have anything to do with any inspection of Hunts.'

There are six other letters--three from appellant to respondent, and three from respondent to appellant--under subsequent dates, set out in the complaint. These, so far as relevant, will be noticed later in discussing one of the contentions made by appellant. It is primarily upon respondent's letter of October 23 and his own reply thereto under date of November 9 that appellant relies as the contract for breach of which he seeks damages in this action. He alleges in his amended complaint, however: 'That at the time of the execution of the contract aforementioned a general and universal custom prevailed for the sale of steel rails wherein the buyer of steel had the right to inspect or designate an inspector either at the place of shipment or at the destination.'

This allegation of custom, or, more properly, usage, cannot avail appellant anything unless there was, in fact and law, a contract consummated by the correspondence to which we have referred; for it is well settled that, when there is no contract, proof of usage will not make one. Lawson on Usage and Customs, p. 370, § 185; 27 R.C.L. 172, 173, § 20; Thompson v. Riggs, 5 Wall. 663, 18 L.Ed. 704; National Savings Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621; Thomas v. Guarantee Title & Trust Co., 81 Ohio St. 432, 91 N.E. 183, 26 L.R.A.,N.S., 1210.

So, we come to the principal question in the case: Whether appellant's letter of November 9 was an unqualified acceptance of the offer made by respondent in its letter of October 23 to sell appellant two cars of rail and angle bars at $17.50 a gross ton.

It will be remembered that, in his letter of November 9, purporting to accept respondent's offer, appellant interjected 'Hunt will inspect this rail for our customer and will probably designate rail to be rejected or accepted.' Respondent promptly (November 12) replied: '* * * we do not agree to the matter of Hunt's inspection. * * * We are not selling you subject Hunt's inspection No. 1.' It is indisputable that the parties' minds did not meet on the matter of Hunt's inspection. But appellant contends that, in contemplation of law, the statement in his letter of November 9 that 'Hunt will inspect * * *' did not constitute a conditional acceptance of respondent's offer. This contention is based on the theory that the demand for inspection by Hunt was nothing more than he was entitled to under Rem.Rev.Stat. § 5836-47, subd. (2), which provides: 'Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of...