Williams v. A.C. Burdick & Co.

• Citation: 126 P. 603,63 Or. 41
• Parties: WILLIAMS et al. v. A.C. BURDICK & CO.
• Decision Date: 01 October 1912
• Court: Supreme Court of Oregon

126 P. 603

63 Or. 41

WILLIAMS et al. v. A.C. BURDICK & CO.

Supreme Court of Oregon

October 1, 1912

On motion for rehearing. Denied.

For former opinion, see 125 P. 844.

Arthur P. Tifft and Hamilton Johnstone, both of Portland for appellant.

Snow &amp McCamant, of Portland, for respondents.

MOORE, J.

A petition for a rehearing criticises a statement found in the former opinion, to the effect that the errors relied upon for a reversal of the judgment related to the conclusions of law and that there was no controversy respecting the findings of fact. It is contended that such declaration is incorrect, and that the entire dispute in this court related to the findings of fact, in support of which no legal evidence was offered.

The abstract sets forth what was supposed only to be a general summary of the findings of fact, not one of which is quoted as such. Attached to the bill of exceptions is a stipulation, signed by the attorneys for the respective parties, in substance that the matters detailed therein should stand in lieu of the facts. The matters thus referred to consist of copies of telegrams, letters, forms of contracts, etc., apparently including everything that was considered material. This agreed statement of facts was incorporated in the bill of exceptions, and thus became a part of the judgment roll, whereby the recital constitutes the findings of fact properly involved. Frush v. East Portland, 6 Or. 281; Moody v. Richards, 29 Or 282, 45 P. 777. No findings of fact by the trial court were necessary, and the chief inquiry presented by the appeal is the conclusion of law whether or not a contract was consummated by the exchange of telegrams. The part of the former opinion adverted to was believed to be true when first expressed, and a careful re-examination of the matter has not changed the original view in that particular.

It is maintained that the undisputed facts of the case show negotiations only which cannot be construed into a complete contract; and, this being so, the judgment should have been reversed. The apparent mutual assent of the parties, which is essential to the formation of a valid agreement, is to be gathered from the language that they have employed. Thus a text-writer, in discussing this subject and referring to the case of Raffles v. Wichelhaus, 2 H. & C. 906, says "The defendant agreed to buy, and the plaintiff agreed to sell, a cargo of cotton, 'to arrive ex Peerless from Bombay.' There were two such vessels sailing from Bombay one in October; the other in December. The plaintiff meant the latter; the defendant the former. It was held that the defendant was not bound to accept the cotton. It is commonly said that such a contract is void, because of mutual mistake as to the subject-matter, and because, therefore, the parties did not consent to the same thing. But this way of putting it seems to be misleading. The...