Whitaker-Glessner Co. v. Suburban Brick Co.

• Decision Date: 14 September 1920
• Docket Number: 4061.
• Citation: 104 S.E. 62,86 W.Va. 621
• Parties: WHITAKER-GLESSNER CO. v. SUBURBAN BRICK CO.
• Court: West Virginia Supreme Court

104 S.E. 62

86 W.Va. 621

WHITAKER-GLESSNER CO. v. SUBURBAN BRICK CO.

No. 4061.

Supreme Court of Appeals of West Virginia.

September 14, 1920

Submitted September 7, 1920.

Syllabus by the Court.

The provision in an order for bricks, accepted by the recipient calling for a specific number of bricks to be supplied, at a certain rate per month, beginning on the first day of a month specified, but to be shipped only when notified by the purchaser, and also saying in a note appended addressed to the seller, "If unable to fill any part of it at time stated notify us at once, stating when and what part will be shipped," renders the contract so accepted ambiguous on its face, and the seller is entitled, on the trial of an action on such contract by the purchaser against him for damages for the alleged breach thereof, to show in evidence to the jury the correspondence between the parties and all other negotiations leading up to the contract, to explain the subject-matter of the contract and to relieve the contract of its ambiguity.

In an action in assumpsit for damages upon an executory contract recovery can not be had on the common counts, though they accompany a special count, unless the claim of the plaintiff includes matters properly recoverable under such common counts.

Error to Circuit Court, Ohio County.

Action by the Whitaker-Glessner Company against the Suburban Brick Company. Judgment for plaintiff, motion for new trial denied and defendant brings error. Reversed.

J. J P. O'Brien, of Wheeling, and D. B. Evans, of Moundsville for plaintiff in error.

Gur R. C. Allen and T. S. Riley, both of Wheeling, for defendant in error.

MILLER J.

The errors assigned and relied on by defendant below, plaintiff in error, involve the correctness of the rulings of the court on the evidence, the instructions to the jury given and refused, and the motion of the defendant to set aside the verdict and award it a new trial.

The declaration contains a special count and the common counts in assumpsit, and the cause of action pleaded and relied on in general terms was for damages for the alleged breach by defendant of its contract to manufacture and deliver to plaintiff 275,000 paving blocks. The trial resulted in a verdict and judgment for plaintiff for $646.25.

Plaintiff undertook to prove the contract pleaded by the introduction of the following letters between it and defendant, and the court sustained its objection to the evidence, written and oral, offered by defendant intended to or having the effect to vary or explain the terms of the contract alleged to have been concluded by the correspondence offered in evidence by the plaintiff. Omitting the headings of the letters, this correspondence is as follows:

Whitaker"Glessner Co. Order No. 191

Beech Bottom Works

Wheeling, W.Va. April 20th, 1917.

To Suburban Brick Company, Moundsville, W.Va.

Ship to Whitaker-Glessner Co., Beech Bottom, Brooke County, W.Va.

Our Order Number Must Appear On Your Invoice.

To supply 40,000 to 50,000 No. 2 Pavers per month, beginning May 1, 1917, and continue at the above rate until our wants are supplied. Maximum quantity to be 275,000. Whitaker-Glessner Company to advise 30 days in advance, when supply is to be discontinued.

Price: F. o. b. cars Beech Bottom, W.Va. $13.65 per M.

Delivery: Shipment to be made when notified. (Subject to freight advance).

Note: The above confirms phone conversation with your Mr. Adams under even date. Brick to be supplied as per samples submitted.

Address reply to Whitaker-Glessner Co., City Bank Bldg., Wheeling, W.Va.

Whitaker-Glessner Co.

By W. J. Stoop.

Note: Please acknowledge receipt of this order. If unable to fill any part of it at time stated notify us at once, stating when and what part will be shipped. Send bill lading stating route, rate and weight with each invoice.

The answer of the defendant is as follows:

Moundsville, W.Va., April 21, 1917.

Whitaker-Glessner Co., Wheeling, W.Va.

Gentlemen: We are in receipt of your order 191 for No. 2 Paving Block to be shipped to yourselves at Beech Bottom at $13.65 per M. We note you failed to state on the order that this price was subject to any advance that may be granted in the present freight rate and we have noted same on your order.

Thanking you for the business, we are,

Yours truly, Suburban Brick Co.,

A. B. Adams, Sales Mgr.

The reply of the plaintiff to this letter is in these words:

Wheeling, W.Va., April 23, 1917.

Suburban Brick Company, Moundsville, W.Va.

Gentlemen: Replying to your letter of the 21st relative to our order 191, wish to advise the price of $13.65 per M., f. o. b. cars Beech Bottom, W.Va., for No. 2 Paving Block is based on present freight rates and should the freight be increased this advance will be taken care of by the Whitaker-Glessner Company.

Yours truly, Whitaker"Glessner Co.,

By W. J. Stoop.

As establishing a breach of the contract as alleged plaintiff was allowed to introduce the subsequent correspondence between the parties, beginning with a letter of defendant dated May 31, 1917, written before plaintiff had given defendant any notice or shipping directions for the brick, as follows:

"Owing to present War Conditions, shortage of labor and other unavoidable causes, we are compelled to shut down our Moundsville Plant. Hence, as it is very doubtful if we will be in position to make satisfactory delivery of your order No. 191, we are returning same herewith. As soon as present conditions alleviate we will resume operations and if we are in position to ship you anything in the late summer we shall be glad to do so."

Following this letter is one of plaintiff to defendant, dated June 2, 1917, returning Order No. 191, and notifying the latter that it would expect fulfillment of the order, and wanting to know at once defendant's intention in the premises; another of June 13, calling for reply to the one of June 2; one of defendant to plaintiff of June 13, advising that it regarded its letter of May 31 a sufficient answer, and repeating its substance; another of plaintiff to defendant in reply, of June 29, asking for a more definite answer, and advising defendant that it was expected to supply promptly at least 80,000 No. 2 Pavers on account of May and June deliveries and in July and the following months forty to fifty thousand per month, and if not plaintiff would purchase same from other parties and charge it with any increased price; and lastly a letter from plaintiff to defendant, of July 24, 1917, advising that on account of its failure to ship the May and June quotas of brick, plaintiff had been compelled to purchase from other parties at an advanced price, and would render invoices for the difference in price, and demanding the quotas of brick for July, August, September and October.

The remainder of plaintiff's evidence admitted relates to the omission of defendant to furnish any of the bricks referred to in the correspondence, the purchase of other bricks in the market to take their place, the prices paid, and the damage sustained as claimed, amounting to $1,231.88.

The claim and theory of the defense was that the correspondence relied on by plaintiff did not cover the whole of the contract; that the order of the plaintiff of April 20, 1917 represented as having been accepted by defendant by its letter of April 21, with modification and suggestion as shown...