Reynolds v. Omaha Gen. Iron Works

• Court: Nebraska Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Reynolds v. Omaha Gen. Iron Works, 105 Neb. 361, 180 N.W. 584 (Neb. 1920)
• Decision Date: 04 December 1920
• Docket Number: No. 21105.,21105.
• Parties: REYNOLDS & MAGINN v. OMAHA GENERAL IRON WORKS.

105 Neb. 361

180 N.W. 584

REYNOLDS & MAGINN

v.OMAHA GENERAL IRON WORKS.

No. 21105.

Supreme Court of Nebraska.

Dec. 4, 1920.

Syllabus by the Court.

A letter to a firm of contractors, proposing, for a stated sum, to furnish all the material of a certain kind required in the erection of a certain building, according to its plans and specifications, in case the firm should be the successful bidders therefor, is such an offer as will, when accepted after the contract for the building has been awarded to the firm, constitute a valid and enforceable agreement.

Evidence examined, and held sufficient to establish the unqualified oral acceptance by the appellees of the proposition to furnish the material aforesaid.

The oral acceptance of a written offer to sell goods is sufficient to satisfy the statute of frauds, if the person making the offer is the party to be charged, and the written offer contains all the essential terms of the proposed contract.

The written offer in this case held to set forth all the terms essential to constitute a sufficient memorandum to satisfy the requirements of the statute of frauds. Section 2631, Rev. St. 1913.

Though a more formal contract is expected to be afterwards made, an informal agreement, complete in its terms, will take effect if the parties so intend, provided that the formal contract is not to contain material provisions not contained in or to be inferred from the preliminary informal agreement. Where, therefore, such complete informal agreement has been conclusively established, it is not error to exclude as immaterial offered evidence to the effect that it was the custom of the parties in their previous dealings to embody their agreements in formal contracts.

Where a case is tried in all respects as if the averments of the answer had been denied by reply, the fact that no reply was actually filed cannot be taken advantage of on appeal.

Appeal from District Court, Douglas County; Estelle, Judge.

Action by Reynolds & Maginn against the Omaha General Iron Works. Judgment for plaintiffs, and defendant appeals. Affirmed.Edward R. Burke, of Omaha, for appellant.

Smith, Schall & Howell, of Omaha, for appellees.

DORSEY, C.

Reynolds & Maginn, a firm of contractors, plaintiffs in the court below and appellees here, recovered a judgment against the appellant Omaha General Iron Works for damages for alleged breach of contract in failing to furnish the structural steel and iron required in the erection of a school building at Beemer, Neb., which the appellees were under contract to erect. Both parties moved for a directed verdict at the close of the evidence, the jury was discharged, and judgment was rendered by the court.

The action was predicated upon a letter received by the appellees from the appellant and the alleged oral acceptance of the offer therein contained. The letter follows:

“Omaha, Neb., Feb. 9, 1917.

Reynolds & Maginn, General Contractors, 3013 Ames Avenue, Omaha, Nebraska--Gentlemen: We propose to furnish the structural steel and miscellaneous iron for the erection of the high and grade school at Beemer, Neb., in accordance with the plans and specifications prepared by architect W. F. Gernandt, delivered f. o. b. cars Beemer, for the sum of nineteen hundred dollars ($1,900.00).

In the above price we have included all door and window lintels, steel columns, and I-beams, ring and covers, joist anchors and hangers, clean-out door, cast-iron window sill, reinforcing bars for concrete stairs, doorframe anchors, one flagpole, one ashpit door. We trust these figures may be of some service to you and that if you are the successful bidders we may be favored with the order.

Omaha General Iron Works,

D. B. Van Every.”

The appellees made no written response to this letter, but on February 27, 1917, after having secured the contract for the schoolhouse, their representative called the appellant by telephone and informed it that the appellees were the successful bidders. A conversation ensued in which, according to the testimony offered by the appellees, they notified the appellant of their acceptance of its offer to furnish the steel and iron pursuant to the terms of the letter of February 9, and the appellant signified its intention to comply therewith. March 12, 1917, however, the appellant advised the appellees by letter that a mistake of $600 had been made in its estimates of the cost of the material in question, and that it would not furnish the same except at an increase in that amount. The appellees then procured the material from another concern at a cost exceeding the appellant's estimate of $1,900 in the sum for which judgment was rendered in this action.

Deferring, for the moment, the question whether or not there was a sufficient acceptance of the alleged offer, as contained in the letter, our first inquiry must be whether the letter of February 9 constituted such an offer or proposal as could be turned into a contract by acceptance. Nebraska Seed Co. v. Harsh, 98 Neb. 89, 152 N. W. 310, L. R. A. 1915F, 824, holds, in substance, that a letter intended only as a preliminary negotiation, an invitation to the person addressed or to the public generally, or to those engaged in a particular line of business, to make an offer or to trade, or a letter in the nature of an advertisement or circular, addressed generally to those engaged in a particular line of business, stating the price at which property is held, could not be converted into a contract by acceptance. The language of the letter in question in that case consisted of a statement that the writer had about 1,800 bushels of millet seed, and wanted a certain price therefor. It was held not to be a final proposition, but a mere request for bids, because it did not contain a distinct offer to sell.

[1] The letter involved in the instant case, however, was in the form of a definite proposal to furnish the material required in the erection of a certain building, in accordance with certain plans and specifications and for a total sum. It was in the nature of a bid for the entire amount of material of the kind indicated required for a particular job, rather than a general quotation of prices of different kinds of material handled by the appellant, such as the ordinary trade circular. The recipient of a trade circular or price quotation usually must formulate and send an order, stating the quantities of different kinds of material desired, and that would be the basis of the contract if it should be accepted by the...