Saco-Lowell Shops v. Clinton Mills Co., 1506.

• Decision Date: 29 December 1921
• Docket Number: 1506.
• Citation: 277 F. 349
• Parties: SACO-LOWELL SHOPS v. CLINTON MILLS CO.
• Court: U.S. Court of Appeals — First Circuit

277 F. 349

SACO-LOWELL SHOPS v. CLINTON MILLS CO.

No. 1506.

United States Court of Appeals, First Circuit.

December 29, 1921

Thomas Hunt and Rupert L. Mapplebeck, both of Boston, Mass. (Gaston Snow, Saltonstall & Hunt, of Boston, Mass., on the brief) for plaintiff in error.

Stuart C. Rand, of Boston, Mass. (John L. Hall, of Boston, Mass and Thomas A. McKennell, of New York City, on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON Circuit Judge.

This is a writ of error from a judgment of the District Court of Massachusetts, in which the Clinton Mills Company was plaintiff and the Saco-Lowell Shops defendant, and for convenience they will be so designated herein.

The plaintiff was a corporation engaged in the manufacture of cotton cloth at Hoboken, N.J. Part of its product was used by another corporation known as the Ayvad Manufacturing Company in the manufacture of water wings, an article protected by a patent, and the balance was sold to others. Some time in the year 1913 Mr. H. A. Ayvad, who seems to have controlled both corporations, desiring to increase their business, partly upon information furnished him by the defendant, purchased a cotton mill plant at Emporia, Va., with the intention of moving there the machinery which he had been using at Hoboken and by the addition of new machinery forming a larger plant than that previously conducted at Hoboken.

Mr. Ayvad applied to the defendant to furnish additional machinery needed at the new plant and to furnish specifications for the proper equipment of a 5,000-spindle cotton mill which the plaintiff proposed to establish, using, as far as the same was suitable, the old machinery which was in the plaintiff's plant at Hoboken.

On October 14, 1914, the defendant submitted to H. A. Ayvad its written proposal for furnishing machinery covered in a schedule annexed thereto. This machinery was of the standard type built by the defendant at its shops in Massachusetts and Maine and was to be delivered before January 1, 1915.

This proposal was retained by Mr. Ayvad until the first part of January, 1915, when it was returned to the defendant with certain changes in the specifications and in the time of the first payment, but without changing the time of delivery. These changes were made by Mr. Ayvad and his superintendent by interlineations and notations upon the printed and typewritten sheets constituting the original proposal, which was in duplicate. One of the parts was retained by the plaintiff, and the other sent to the defendant. Upon both parts, before the return of one of them to the defendant, the plaintiff had entered the following indorsement: 'Accepted: Clinton Mills Company, H. A. Ayvad, Pres.'

January 6, 1915, the defendant wrote the plaintiff in regard to the interlineations and notations which the latter had made upon the original proposal and discussed them in detail, pointing out why it wished to adhere to the original specifications.

Although the plaintiff had written its acceptance upon the original proposal, yet the return of it with the changes which it had made was a rejection by it of the defendant's offer. Bank v. Hall, 101 U.S. 43, 50, 25 L.Ed. 822; Minneapolis, etc., Ry. v. Columbus Rolling Mill, 119 U.S. 149, 7 Sup.Ct. 168, 30 L.Ed. 376; Denver v. New York Trust Co., 229 U.S. 123, 140, 33 Sup.Ct. 657, 57 L.Ed. 1101.

The defendant did not withdraw its offer, but by its letter of January 6, 1915, renewed it; and, as the time of delivery fixed therein had become impossible, it called the attention of the plaintiff to the fact that a new time of delivery must be agreed upon and urged the plaintiff to advise in regard to it.

On January 20, 1915, not having received a reply to its letter of January 6th, the defendant again wrote, asking for a reply at an early date, and stating that it was unable to proceed with the building of the roving and spinning machinery until all the details covered by its letter of January 6th were closed up.

On January 25, 1915, the plaintiff wrote the defendant, stating that because of other work its Mr. Ayvad and its superintendent, Mr. Fadden, had not had time to consider the matters discussed in the defendant's letter of January 6th, but promised attention within a week and that information needed should be sent.

March 15, 1915, the defendant wrote the plaintiff:

'We would be very glad indeed to hear from you as to how matters are progressing and if we may have your final approval of the specifications and date of delivery of the machinery.'

On May 6, 1915, the defendant again wrote Mr. Ayvad, stating that it must know something definite with regard to the plaintiff's requirements for delivery in order to protect it upon the same, as it was rapidly filling up with orders for deliveries during the balance of the year.

To this letter the plaintiff replied, stating that it had not been able to arrive at a definite decision in regard to the machinery; that its Mr. Ayvad and Mr. Fadden went over the proposal that had been submitted and found that the machinery designated in it would not match its present machinery, and that it was very particular not to have various kinds of machinery in its mills; that it would therefore be necessary to go over the whole situation once more and have this point clearly understood, stating that Mr. Ayvad would be at Hoboken about the 1st of June and would like to have a talk with Mr. Havey, selling agent of the defendant company, before going too far.

To this letter the defendant replied that it would be glad to go over the matter again when Mr. Ayvad came to Hoboken.

Up to this point it is apparent that no contract had been made. The defendant had submitted a proposal which had been changed by the plaintiff in material features. The defendant had not agreed to these changes, and no time of delivery had been agreed upon in place of that which had become impossible. The whole contract, involving specifications, times of payment, and delivery, was allowed to stand open awaiting an interview between the parties.

An interview was had about the 1st of June, 1915, between Mr. Ayvad and Mr. Havey, selling agent for the defendant; but the parties disagree as to what actually took place. Mr. Ayvad testified that, after the suggested changes in the original proposal had been gone over by Mr. Havey and explained to him, he finally agreed to waive the changes which he had asked for, and that the machinery might be furnished in accordance with the proposal submitted by the defendant; that it was agreed that the delivery should be made in the fall and that the first payment of $5,000 should be made one year after the average date of shipment.

Mr. Havey testified that at this interview Mr. Ayvad told him that he could not decide upon the matters covered by the notations which had been made by him upon the original proposal, and discussed by the defendant in its letter of January 6th, until he had conferred with his superintendent, Mr. Fadden, and therefore that the whole matter was left unsettled.

Whatever occurred at this meeting in June depended for its proof entirely upon oral testimony and was not shown by any written memorandum or correspondence.

Nothing further occurred between the parties until October 2, 1915 when the plaintiff wrote the defendant asking if it would not be possible to deliver the machinery which it had ordered last year and erect the same, together with the old machinery which it had transported from Hoboken to Emporia, and have its plant at Emporia running about the middle of November; that the time was very important, as it had been offered a contract under which deliveries would have to be made commencing December 1, 1915; and that its acceptance was conditioned upon the defendant making its delivery as requested. It asked that the defendant reply by telegram, which it did upon October 4th, stating that it was impossible to make delivery before the last of December; and upon the same day it wrote the plaintiff confirming its telegram and stated that the time...