Russell v. Falls Mfg. Co.

• Decision Date: 20 March 1900
• Citation: 106 Wis. 329,82 N.W. 134
• Parties: RUSSELL ET AL. v. FALLS MFG. CO.
• Court: Wisconsin Supreme Court

106 Wis. 329

82 N.W. 134

RUSSELL ET AL.

v.FALLS MFG. CO.

Supreme Court of Wisconsin.

March 20, 1900.

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action by F. T. Russell and others against the Falls Manufacturing Company. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

On May 27, 1898, plaintiffs' traveling salesman took a written order from the defendant in the following words: “Oconto Falls Manufacturing Co.: Bought of Russell Bros. 1 car of flour, to be shipped out any time between now and July 1st, when ordered by the Oconto Falls Mfg. Co. Terms, 30 days from shipment. [[[Descriptions and quantities.] Subject to the approval of Russell Bros., and they are to notify the Oconto Falls Mfg. Co. at once if they accept of order. Falls Mfg. Co., W. L. E.” And on the same or the next day they replied by the following letter: “Your order received, given our Mr. Parish, and will accept same, to be shipped some time in June, 1898. We suppose Mr. Parish gave you our terms,--all goods sold on 30 days' acceptance without interest, and, if longer time wanted, 8 per cent. interest after 30 days. (All acceptance dated same day as invoice & B. L.) to be signed and returned as soon as car is unloaded.” No response was made until June 10, 1898, when the defendant sent the following: “Please cancel our order for flour, which was to come in some time this month, as we have decided to continue buying the same flour we have been using. We are informed that the flour you are making would not be suitable to our trade.” Plaintiffs immediately replied, denying right to cancel; saying that both parties were bound by the foregoing order and acceptance, and that they should hold the flour until July 1st, and then, if not ordered, sell it on defendant's account, and hold defendant for the difference. On June 17th defendant again wrote, insisting on its can cellation, and declaring that it would not order the flour; and plaintiffs again replied that they would insist on the contract. After July 1st plaintiffs sold the flour at a loss of some $267. At the close of the plaintiffs' evidence, judgment of nonsuit was rendered, from which plaintiffs appeal.E. A. Baker, for appellants.

Dawson & Chopin, for respondent.

DODGE, J. (after stating the facts).

The plaintiffs' response to the defendant's written order contained material modifications. The specification of terms slightly different from those used in the order could...