Price v. Weisner

• Decision Date: 05 November 1910
• Docket Number: 16,676
• Parties: MILBERT F. PRICE et al., Partners doing business as the United Jewelers Manufacturing Company, Appellants, v. A. A. WEISNER, Appellee
• Court: Kansas Supreme Court

111 P. 439

83 Kan. 343

MILBERT F. PRICE et al., Partners doing business as the United Jewelers Manufacturing Company, Appellants, v. A. A. WEISNER, Appellee

No. 16,676

Supreme Court of Kansas

November 5, 1910

Decided July, 1910.

Appeal from Ellis district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SALES--Contract Not Sufficiently Definite and Certain. An order for $ 360 worth of jewelry, to be made up of articles named in a price list contained in the order is void where it can not be determined from the writing itself either the quantity, quality or price of any of the articles specified which the plaintiffs were bound to ship and which the defendant agreed to purchase.

2. SALES--Delivery Prerequisite to Action for the Purchase Price. The plaintiffs sued to recover for goods, wares and merchandise sold and delivered according to the terms of a written order. On the trial the plaintiffs introduced the original order and rested. Held, that if the order had constituted a valid and binding contract the court rightly sustained a demurrer in the absence of any testimony showing a delivery of the goods to the defendant.

A. D. Gilkeson, for the appellants.

W. E. Saum, for the appellee.

OPINION

PORTER, J.:

This is an appeal from a judgment sustaining a demurrer to the plaintiffs' evidence. The plaintiffs sought to recover $ 360 for goods, wares and merchandise sold and delivered to the defendant at his special instance and request, according to the terms of an alleged written contract. The petition set up a copy of the written instrument, which included an order for the shipment of goods to the amount named. The answer admitted signing the order and denied the other material averments of the petition. The following are the only portions of the writing which are pertinent to the issue involved:

"We place the following factory line of rolled gold plate, gold filled, gold front, sterling silver and oxidized finished articles in assorted styles and patterns on our most liberal and beneficial conditions: Belt buckles or pins from 15c to $ 2 each, charms and lockets from 15c to $ 2.50 each, pin sets (three in set) from 15c to $ 1.25 per set, dress-button sets (three in set) from 16c to $ 1 per set, single studs 50c each, ditto link sleeve buttons from 15c to $ 1.25 per pair emblem pins and buttons 30c to 50c each, lace pins from 16c to $ 1.50 each, collar buttons from 12c per doz. to $ 1.44 per doz., scarf pins from 8c to $ 1.25 each, set and signet rings from 25c to $ 2.25 each, friendship and baby rings from 15c to 35c each, chased band rings from 35c to 95c each, plain band rings from 50c to $ 1.05 each, silk fobs from 90c to $ 1.50 each, vest chains or metal fobs $ 1.25 to $ 3 each, sleeve buttons from 15c to $ 1.25 per pair, ladies' long and neck chains from 75c to $ 2.75 each, bracelets from 85c to $ 2.25 each, hat pins from 10c to 50c each, delivered f. o. b. transportation companies and amounting to $ 360, which can be paid one-fourth in two months, one-fourth in four months, one-fourth in six months and one-fourth in eight months, without interest if acceptances are given 10 days from date of invoice, otherwise terms are net cash 15 days or 6 per cent discount 10 days.

"The United Jewelers Manufacturing Company is hereby authorized at their option to reduce but not increase the amount of this order, and if thus reduced the same to stand as if originally so given.

"United Jewelers Manufacturing Company factory:

"Please ship at your earliest convenience the goods listed...