Pittsburgh Plate Glass Co. v. H. Neuer Glass Co.

• Decision Date: 08 October 1918
• Docket Number: 3149.
• Citation: 253 F. 161
• Parties: PITTSBURGH PLATE GLASS CO. v. H. NEUER GLASS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

253 F. 161

PITTSBURGH PLATE GLASS CO. v. H. NEUER GLASS CO.

No. 3149.

United States Court of Appeals, Sixth Circuit.

October 8, 1918

Tuttle & Ross and Pogue, Hoffheimer & Pogue, all of Cincinnati, Ohio (Burton B. Tuttle and Province M. Pogue, both of Cincinnati Ohio, of counsel), for plaintiff in error.

Edw. P Moulinier and John H. Druffel, both of Cincinnati, Ohio, for defendant in error.

Before WARRINGTON and KNAPPEN, Circuit Judges, and WESTENHAVER District Judge.

KNAPPEN Circuit Judge.

Plaintiff in error, whom we shall call defendant, was a manufacturer of glass at Pittsburgh, and had a warehouse at Cincinnati, where it kept on hand for sale quantities of glass of various sizes. Defendant in error, plaintiff below, was a Cincinnati jobber of glass. Plaintiff sued on an alleged contract, dated January 3, 1916, taking the form of a letter to plaintiff from defendant, and signed by it, as follows 'In accordance with our personal conversation, we have entered your order for polished plate glass, for anything we can furnish from our warehouse, these discounts to apply until June 30, 1916, as follows: (Sizes and discounts here stated)-- all from the current list of May 1, 1914, and subject to 1 per cent. for cash. I am writing this letter in duplicate, and will thank you to sign and return one copy at your earliest convenience.'

The letter bears on its face the word 'Accepted,' followed by plaintiff's signature. The petition avers that plaintiff gave defendant, under the contract, certain orders for glass which were filled, and gave from May 26 to June 29 other orders for glass, 'which defendant could furnish from its warehouse, but which it failed and refused to fill. ' Plaintiff demanded the difference between the aggregate market and contract prices respectively of the glass not furnished. A demurrer to the petition, as not stating a cause of action, was overruled. Defendant then answered issuably. A trial by jury resulted in verdict and judgment for plaintiff. Defendant's motion for new trial was overruled. On this review, the only proposition open to defendant is that the petition fails to state a case. The proceedings on the trial are not brought up.

Defendant's contention is that the contract is void, as unilateral and lacking mutuality or consideration. The argument is that the contract was merely an offer by defendant to sell to plaintiff such glass of the sizes and kinds named as defendant could furnish from its warehouse, but without any obligation on plaintiff's part to take any glass (except such as it might choose from time to time to order), and without the giving of any consideration for defendant's agreement by way of order accompanying the contract, or otherwise.

Plaintiff's contention is two-fold: First that by the contract plaintiff was bound to buy whatever glass of the kinds and sizes in question defendant should have in its warehouse; and, second (as we understand it), that if the writing is held a mere offer by defendant, subject to withdrawal before its acceptance, the offer was a continuing one, and a contract was created as to each order given by plaintiff while the offer was still open and unrevoked by defendant. The court below agreed with plaintiff on the first proposition, and, at least in its practical result, as to the second. It does not appear that any specific order for glass accompanied the contract, nor that there was any consideration for defendant's promise unless in plaintiff's obligation to buy.

Contracts to furnish such material as one may need in his business for a specified time are, by the weight of authority, held mutual and binding on the parties, where the nature of the purchaser's business is such as to make the quantity of the article he will need subject to a reasonably accurate estimate. In support of this general proposition, as tersely stated in note 43 L.R.A. (N.S.) 730, we need refer only to the decisions of this court. Lima Locomotive, etc., Co. v. National, etc., Co., 155 F. 77, 83 C.C.A. 593, 11 L.R.A. (N.S.) 713; Loudenback Fertilizer Co. v. Tennessee Phosphate Co., 121 F. 298, 58 C.C.A. 220, 61 L.R.A. 402; Inman v. Dudley, etc., Co., 146 F. 449, 76 C.C.A. 659; Campfield v. Sauer, 164 F. 833, 91 C.C.A. 304; Marx v. Amer. Malting Co., 169 F. 582, 95 C.C.A. 80

The basis of this rule is that the purchaser's obligation to buy to the extent of his needs supplies mutuality. We assume, however, for the purposes at least of this opinion, that if the contract is to be construed as binding plaintiff to buy such glass only as it should see fit to take, that is to say, so much as it should decide to order for the purposes of its jobbing trade, it would be void for want of mutuality, as leaving it optional with it to increase or decrease its orders with the rise and fall in price. Loudenback Co. v. Phosphate Co., supra, 121 F. 301, 58 C.C.A. 220, 61 L.R.A. 402; Crane v. Crane (C.C.A. 7) 105 F. 869, 872, 45 C.C.A. 96 (cited by this court with approval in the Fertilizer Company Case, supra, 121 Fed.at pages 301 and 303, 58 C.C.A. 220, 61 L.R.A. 402); the Lima Case, supra, 155 Fed.at page 79, 83 C.C.A. 593, 11 L.R.A. (N.S.) 713; and Campfield v. Sauer, supra, 164 Fed.at pages 834, 835, 91 C.C.A. 304.

We shall accordingly treat the validity and effect of the writing, as a present contract of purchase and sale, as depending on whether plaintiff was thereby obligated to buy all the glass of the kinds and sizes in question that defendant should actually and in good faith, and in the normal course of its business, have in its warehouse between the making of the contract and June 30 following. That such was the measure of the right which the agreement attempted to give plaintiff is apparent from the language of the writing:

'We have entered your order * * * for anything we can furnish from our warehouse, these discounts to apply until June 30, 1916, as follows.'

The entering of the order was prima facie an acceptance of it. Austrian v. Springer, 94 Mich. 343, 347, 54 N.W. 50 34 Am.St.Rep. 350. Indeed, hat such was defendant's construction of the agreement is suggested by the assertion in its answer that it filled plaintiff's specific orders for glass sent in after February 21st (alleged to be the actual date when the contract was executed), 'in so far as it had the same in its warehouse in Cincinnati, Ohio,' and the District Judge, in his opinion denying motion for new trial,...