Tatsch v. Hamilton-Erickson Mfg. Co.

Citation418 P.2d 187,1966 NMSC 193,76 N.M. 729
Decision Date19 September 1966
Docket NumberNo. 7799,HAMILTON-ERICKSON,7799
PartiesFrank TATSCH, Plaintiff-Appellee, v.MANUFACTURING COMPANY, a corporation, and John Barnes& Associates, Inc., a corporation, Defendants-Appellants.
CourtSupreme Court of New Mexico
Nordhaus & Moses, Fred Trechel, Albuguerque, for appellants
OPINION

NOBLE, Justice.

Frank Tatsch (plaintiff-appellee), a general contractor and the successful bidder for construction of a junior high school at Bayard, New Mexico, recovered damages against Hamilton-Erickson Manufacturing Company (hereafter termed Hamilton) and John Barnes & Associates, Inc. (hereafter termed Barnes), its agent, for breach of contract in failing to furnish certain equipment needed in the school building. This appeal followed.

The plans and specifications required Tatsch to install twelve tables with benches and pockets, 'as manufactured by Schieber Mfg. Co., Detroit 39, Mich. * * *' (Specifications § 15--6). In response to an invitation to bid, Hamilton, by telegram of March 19, 1963, offered 'ten (10) folding tables and benches as above specification section 15--6 for $3,470.00.' Hamilton also offered by the same telegram 'folding tables with benches specification section 15--3 standard Hamilton-Erickson products * * *' for an elementary school building.

The trial court determined that Hamilton had agreed to furnish twelve tables to comply with the architect's specifications, but breached its contract by failing to supply them to Tatsch. While four points are asserted and relied upon attacking certain findings and the refusal to adopt other tendered findings, this appeal turns upon whether there was a binding contract between the parties by which Hamilton agreed to furnish the equipment specified by the architect.

It is not clear upon just what basis the trial court determined that a binding contract existed between the parties. The court made the following pertinent findings, challenged by Hamilton:

'6. That it was the intention of the parties hereto on March 17 (sic 19), 1963, and later in May, 1963, to enter into a contract to be binding between the parties for the furnishing of said tables and benches in accordance with Section 1506 (sic 15--6) of the specifications.

'8. That there was a bona fide offer by defendants herein to furnish twelve tables and benches in accordance with Section 1506 (sic 15--6) of the above mentioned plans and specifications for the erection of a high school building by the Board of Education of the Cobre Consolidated School District of Bayard, New Mexico, and an acceptance by plaintiff herein.

'24. That the purchase order of May 7, 1963, is a full and complete contract, duly entered into by the parties hereto.'

If there was a contract concerning the furnishing of the tables, it must have arisen out of an acceptance by Tatsch of the Hamilton offer.

The evidence concerning the offer and claimed acceptance consists of documentary evidence and the testimony of Frank Tatsch respecting a telephone conversation with Barnes. The evidence in this regard is entirely uncontroverted so that the question of whether a binding contract resulted is one of law.

Tatsch testified that Barnes talked to him by telephone on the day following the school-bid opening, congratulated him on being the low bidder and inquired concerning his supply bids. Tatsch told Barnes he was low on the tables, to which Barnes answered that he was not sure that the Hamilton-Erickson tables would meet the architect's specifications since the offer was to supply standard Hamilton-Erickson tables--not those as manufactured by Schieber Manufacturing Company. Barnes then suggested that Tatsch could talk the architect into accepting the standard Hamilton-Erickson tables. Tatsch replied that he did not do business that way and would 'expect him to furnish a product that would be acceptable to the architect.'

It is clear that there was no acceptance of the telegraphic offer prior to the telephone conversation which amounted to a withdrawal by Hamilton, if in fact the telegraphic offer was to supply tables meeting the architect's specifications. Barnes clearly explained the exact meaning and intent of the offer as one to supply a product different from that specified but which he hoped the architect would accept. Tatsch's reliance upon the telegraphic offer in preparing his prime construction bid, even if he believed it to be an offer to supply the tables specified by the architect, did not amount to an acceptance nor does such offer so relied upon constitute a promissory estoppel. James Baird Co. v. Gimbel Bros., 64 F.2d 344 (2d Cir.1933).

A binding contract would result between the parties here only if Tatsch unconditionally accepted Hamilton's offer before it was withdrawn. Polhamus v. Roberts, 50 N.M. 236, 175 P.2d 196, 170 A.L.R. 991. The Supreme Court of Utah in R. J. Daum Const. Co. v. Child, 122 Utah 194, 247 P.2d 817, succinctly stated the means by which such an acceptance must be made manifest,...

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18 cases
  • Tyler Grp. Partners, LLC v. Madera
    • United States
    • U.S. District Court — District of New Mexico
    • September 30, 2021
    ...171, 174. "An acceptance must be clear, positive and unambiguous." Tatsch v. Hamilton-Erickson Mfg. Co., 1966-NMSC-193, ¶ 10, 76 N.M. 729, 733, 418 P.2d 187, 189 ; Cornoyer v. AT&T Mobility Serv., LLC, No. CIV 15-0474, 2016 WL 6404853, at *11 (D.N.M. Oct. 5, 2016) (Browning, J.). See Medina......
  • DeArmond v. HALLIBURTON ENERGY SERVICES
    • United States
    • Court of Appeals of New Mexico
    • September 25, 2003
    ...796, 798, 791 P.2d 71, 73 (Ct.App.1990). Acceptance must be "clear, positive, and unambiguous." Id.; Tatsch v. Hamilton-Erickson Mfg. Co., 76 N.M. 729, 733, 418 P.2d 187, 189 (1966); Ross v. Ringsby, 94 N.M. 614, 617, 614 P.2d 26, 29 (Ct.App.1980). A party's acceptance of a written offer ma......
  • Loranger Const. Corp. v. E. F. Hauserman Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 5, 1978
    ...(Louisiana law); James Baird Co. v. Gimbel Bros., 64 F.2d 344, 346 (2d Cir. 1933) (no State specified); Tatsch v. Hamilton-Erickson Mfg. Co., 76 N.M. 729, 732-733, 418 P.2d 187 (1966). ...
  • Cornoyer v. At&T Mobility Servs., LLC
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    • U.S. District Court — District of New Mexico
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    ...See Medina v. Sunstate Realty, Inc., 1995-NMSC-002, ¶ 8, 889 P.2d 171, 173; Tatsch v. Hamilton-Erickson Mfg. Co., 1966-NMSC-193, ¶ 10, 418 P.2d 187, 189. A party's acceptance of a written offer may be express or implied by conduct. See Medina v. Sunstate Realty, Inc., 1995-NMSC-002, ¶ 14, 8......
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