Singer v. Grand Rapids Match Co

• Decision Date: 07 February 1903
• Citation: 43 S.E. 755,117 Ga. 86
• Parties: SINGER. v. GRAND RAPIDS MATCH CO.
• Court: Georgia Supreme Court

43 S.E. 755

117 Ga. 86

SINGER.

v.GRAND RAPIDS MATCH CO.

Supreme Court of Georgia.

Feb. 7, 1903.

CONTRACT OF SALE—MEETING OF MINDS— ENFORCEMENT.

1. In every contract of sale the minds of the parties must meet. Where one supposes that he is buying five car loads, and the other that he is selling one car load, of matches, there is no sale.

2. An ambiguity, or a mistake by a slip of the pen or tongue, cannot be caught up and used as the basis of a contract, particularly where such mistake is known, or, from all the circumstances, should be known, to the party seeking so to use it.

3. Courts cannot relieve from bad contracts or hard bargains where they have been deliberately made; but where, from mistake or otherwise, both parties have not agreed to the same thing, no contract has been made, and there is nothing to enforce.

(Syllabus by the Court.)

Error from City Court of Atlanta; A. E. Calhoun, Judge.

Action by H. L. Singer against the Grand Rapids Match Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Westmoreland Bros., for plaintiff in error.

Arnold & Arnold and E. M. & G. F. Mitchell, for defendant in error.

LAMAR, J. This case involves matched by the car load. Under plaintiff's construe-tion, he bought five car loads. Under defendant's construction, it sold only one. The difference arose from the confused and ambiguous language used in the defendant's price list and in the letters giving quotations. It was contended in argument here that there was no ambiguity to those engaged in the match business; but to the ordinary mind there is no doubt that, at first blush, the plaintiff's construction seems to have been natural, and, if the case were to be determined on that ground, the court would have no difficulty in adjudging that the nonsuit was improperly granted. If the plaintiff had actually received the five car loads of matches; believing in good faith that the seller understood the contract in the same way as the buyer, and if thereafter the latter had changed his position—had sold the goods at a price based on his understanding of the quotations, and otherwise acted upon what he thought was the mutual understanding of the parties—and if thereafter the seller had brought suit for several times the amount for which the buyer supposed he was liable, the seller would be held to his contract. Even if the contract was ambiguous, the rule would be applied that an instrument is to be construed most strongly against the one who prepares it. Civ. Code, § 3675 (4). But that is not this case. The seller has not parted with the goods, and the buyer has not paid the purchase money. It is true that he claims that he had taken orders to deliver matches out of this lot, and that he would have made a profit, had the matches been delivered, and thus resold. But the loss of profits anticipated is not sufficient to prevent the application of the rule by which this case is governed.

The price of 144 boxes, each containing 100 matches, was 80 cents; and the defendant argued from this, in connection with the other items in the price list, that in the sale of matches the unit is a gross, or 144 boxes, each containing 100 matches. No. 200, "220 matches in slide box, 12 boxes in package, 12 packages in case, making 144 boxes in 2 gross case, 1.40 per case." No. 500, "500 matches in slide box, 12 boxes in package, 12 packages or 144 boxes in 5 gross case, 3.25 per case." The defendant's brokers, on these quotations, procured an order from the plaintiff for cases of No. 200 and cases of No. 500. If the plaintiff's construction of the quotation is correct, it would have required about five cars to contain the goods bought; and only one if the defendant is correct. As to No. 200 an ambiguity may arise from the double use of the word "case." It appears that 144 boxes were to be packed in a case, and two of these cases were then to be packed in a still larger case, and it is this large case which the plaintiff says was quoted at $1.40. For the reasons hereafter to be given, we think that the real subject-matter of the quotation was the small case, containing 144 boxes. No. 500 were quoted, "12 boxes in package, 12 packages or 144 boxes in 5 gross case, 3.25 per case." It does not appear that here there was any small case in the large case; and while the defendant's contention may possibly be sustained by putting the emphasis on the word "gross, " and five gross in a case, yet it must be admitted that there is much which warrants the interpretation placed thereon by the plaintiff. The language is so confused that it is really doubtful whether it means anything, if it does not mean what the plaintiff claims. But we do not think that it is so much a case of ambiguity as one of mistake, and this mistake appears more from calculation than from the language used. Bearing in mind that 144 boxes, each containing 100 matches, sell at 80 cents, then, if the plaintiff's contention is correct, one could buy a gross of No. 500 for 75 cents. In other words, a gross of No. 100, containing 14, 400 matches, would cost 80 cents, and a gross of No. 500, containing five times as much, or 72, 000 matches, would cost 75 cents, or 5 cents less. Why should any one ever buy No. 100 or No. 200, in view of this price of No. 500? It is a matter of everyday experience to make a wholesale rate less than the retail rate, but unheard of for a barrel-ful to be sold at less than a quart. There is nothing in the record to show any reason why matches should be an exception. The contention of the plaintiff would bring the much-discussed principle of "charging less for the long haul than the short haul" into the affairs of merchants, it was argued that the plaintiff himself showed by his letter, written when he first saw the car, that be understood he was buying by the gross, for he wrote, "We saw your quotations on the matches, and do not see how it could be construed otherwise than that the matches were packed 200s 2 gro. to case and 500s 5 gro. to case and the prices named were for 2 and 5 gro. respectively." He says, however, that this letter shows that he was buying by the two gross and by the five gross—by the large case, and not by any part of what was in the case. If such was his...