the New England Box Company v. John C. Tibbetts And J. C. Taft

• Decision Date: 22 May 1920
• Citation: the New England Box Company v. John C. Tibbetts And J. C. Taft, 110 A. 434, 94 Vt. 285 (Vt. 1920)
• Parties: THE NEW ENGLAND BOX COMPANY v. JOHN C. TIBBETTS AND J. C. TAFT
• Court: Vermont Supreme Court

110 A. 434

94 Vt. 285

THE NEW ENGLAND BOX COMPANY v. JOHN C. TIBBETTS AND J. C. TAFT

Supreme Court of Vermont

May 22, 1920

Special Term at Brattleboro, February, 1920.

ACTION OF CONTRACT to recover damages for the nondelivery of certain lumber claimed by the plaintiff to have been sold to it by the defendants. Plea, the general issue. Trial by jury at the September Term, 1917, Windham County, Stanton, J., presiding. At the close of the evidence the Court directed a verdict for the plaintiff on the question of liability, and submitted the case to the jury on the question of damages only, to which the defendants excepted. Verdict for the plaintiff to recover one dollar damages and costs. Judgment on the verdict. Both parties excepted.

Judgment reversed and cause remanded.

Harvey Maurice, Whitney & Fitts for the plaintiff.

A F. Schwenk for the defendants.

Present WATSON, C.J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

WATSON

The ordering of a verdict on the question of liability was error for two reasons. (1) A careful reading of the letter, Ex. 8, shows that it does not purport to specify the kind of lumber, nor its thickness, width, or length, when sawed, nor when to be delivered. It speaks of having received "a further report from Mr. Baker (plaintiff's agent) in regard to lumber " defendants are going to saw out "this season" at the two mills mentioned. The letter concluding by asking Tibbetts, to whom it was sent, at his early convenience, to let plaintiff know whether the offer is accepted, and if it is, "we will send up regular contracts which we would like to have signed." In short, the only thing specifically stated in the offer as an element of the contract is the price which the plaintiff would pay a thousand feet f. o. b. cars at loading point for the approximate 300 M. feet the defendants were to saw out that season. All other essentials of the contract, if one was in fact entered into, are to be gathered from the letters which passed between the parties, and from parol evidence. Exhibit 9, the letter relied upon by the plaintiff as containing defendants' acceptance of the offer made in Ex. 8, specifies the thickness and kind of lumber as "2 1/8 white pine plank to be delivered when dry."

Whether in thus specifying the thickness and kind of lumber and time of delivery, particulars not mentioned in plaintiff's letter making the offer of price, it goes so beyond the terms proposed by the plaintiff as not to be an acceptance of them, but rather a counter proposal, it is unnecessary to consider; for the question of whether a contract was entered into is not to be determined upon these two letters alone. It must be determined upon the numerous letters written by the parties in the course of the negotiations, taken in connection with the other facts and circumstances shown by parol. It was for the jury to say on the whole evidence whether a contract was made, and, if made, just what it was. Taplin & Rowell v. Marcy, 81 Vt. 428, 71 A. 72.

(2) It is further urged by the defendants that there was no perfected contract, for the reason that it was understood by the parties that when the terms were agreed upon, the contract should be reduced to writing, which was not done. The evidence was conflicting on this question, and it should have been submitted to the jury. If it was the intention and understanding of the...