Williams v. A.C. Burdick & Co., Inc.

• Decision Date: 30 July 1912
• Citation: 63 Or. 41,125 P. 844
• Parties: WILLIAMS et al. v. A.C. BURDICK & CO., Inc.
• Court: Oregon Supreme Court

125 P. 844

63 Or. 41

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

Supreme Court of Oregon

July 30, 1912

Appeal from Circuit Court, Multnomah County; John P. Kavanaugh Judge.

Action by Arthur P. Williams and others, partners under the firm name and style of R.C. Williams & Co., against A.C. Burdick &amp Co., Incorporated. Judgment for plaintiffs, and defendant appeals. Affirmed.

This is an action to recover damages for the breach of an alleged agreement. It is stated in the complaint that at all the times mentioned therein the plaintiffs were partners as R.C Williams & Co., and the defendant was a corporation; that on June 14, 1910, a contract was effected, whereby the defendant agreed to sell and deliver to plaintiff, at some point in Oregon, in October of that year, f.o.b., a car of Italian prunes of the grade known to the trade as "30s-40s," for which the plaintiff stipulated to pay 3 1/4 cents per pound, bulk basis; that the defendant refused to deliver any prunes to plaintiffs, who were at all times ready, able, and willing to pay therefore the stipulated sum; that in Oregon, in October, 1910, the market price of prunes of the kind and grade specified was 4 3/4 cents per pound, bulk basis; and that by reason of the breach of the agreement plaintiff sustained damages to the extent of $562.50, for which sum judgment was demanded, with interest from October 31, 1910. The answer having denied each allegation of the complaint, the cause was tried without a jury, resulting in a judgment for plaintiffs as demanded, and the defendant appeals.

Arthur P. Tifft, of Portland (Hamilton Johnstone, of Portland, on the brief), for appellant.

Wallace McCamant, of Portland (Snow & McCamant, of Portland, on the brief), for respondents.

MOORE, J. (after stating the facts as above).

It appears from the bill of exceptions that the defendant is a corporation, engaged in buying and selling dried fruits, its office being in Portland, Or., from which city it sent a telegram, June 13, 1910, to M.W. Houck & Bro., commission merchants at 189 Franklin street, New York, and, referring in the message to such edible fruit then growing in Oregon stated in part: "Offer one straight car fine large thirties October shipment at three and half base." The next day these brokers, alluding to plaintiffs, wired the defendant in part as follows: "As per your message R.C. Williams offers f.o.b. three and one-fourth car thirty-forty twenty extra." Replying to this message on the same day, the defendant telegraphed the brokers: "Accept Williams mailing contract hold thirties firm three three-eighths." At the same time the defendant wrote the brokers a letter, from which an excerpt is taken, viz.: "In accordance with the wires exchanged by us to-day we enclose you a contract for R.C. Williams & Co. We signed the yellow one for the buyer and please have them sign the blue one for us and return it promptly. We hardly know how we came to sell this car so cheap, as there is no profit in it for us. We did business with Mr. Williams last year, and wanted to hold their trade, but we do not care to sell any more cars of 30-40s, unless we get 3 3/8 cents, bulk base." Accompanying this letter was the draft of a formal contract containing various specifications. The defendant, on July 1, 1910, wrote Houck & Bro. in part as follows: "We have not received the contract we sent you for R.C. Williams & Co. Please let us know if he accepts or objects, so that we will be in position to sell the car in case he does not accept." After the exchange of several letters in which references were made to the forms of dried fruit contracts adopted by the respective parties, and the refusal of each to sign the contract prepared by the other, the plaintiffs, on August 8, 1910, wrote the defendant, saying in part: "As far as the contract goes, we have got all the contract we want. We have copy of your telegram. We have copy of telegram to you, and we have got the acceptance of car load of 30-40 prunes. *** You have sold us a car of 30-40 prunes. Ship same along; we will pay you for them and there will be absolutely no trouble." The defendant finally wrote the plaintiffs, saying in part: "Your refusal to sign our contract closed the intended sale on our part, and as there is no contract we will ship you no prunes."

The chief inquiry to be considered on this appeal is whether or not the defendant's telegram of June 14, 1910, to Houck & Bro., in response to their message of the plaintiffs' offer, evidenced a meeting of the minds of the parties and effected a contract. The defendant's counsel maintain that the message contained a qualified acceptance of the bid, and proposed a formal draft evidencing the agreement, but, the overture having been declined by plaintiffs, an error was committed in rendering a judgment in their favor. The error alleged relates to the conclusion of law, which, it is argued, is not deducible from the finding of facts as made by the trial court, in respect to which there is no controversy.

It was stated at the trial of this appeal that dried Oregon prunes are graded by machinery, and that the term "fine large thirties." referred to in the defendant's telegram of June 13, 1910, means such a variety of desiccated fruit that 30, or less, weigh a pound, and that the market value increases with and depends upon the size of the prunes. The "thirty-forty" assortment, mentioned in the broker's message, is not so large as "thirties," and for that reason it is less valuable in the market than the latter. The offer of R.C Williams & Co., as detailed...