125 S.E. 86 | W. Va. | 1924
Plaintiff, the seller, sued in assumpsit, to recover damages for defendant's breach of a contract for the sale and purchase of a quantity of feed. The first trial of the case in the circuit court resulted in a judgment for defendant, which judgment was reversed by this court in our opinion appearing in 90 W. Va. at page 774, 111 S.E. 838. Upon re-trial defendant obtained a second verdict and judgment, and the case is again before us on writ of error.
As disclosed by our former opinion, plaintiff's salesman, on March 14th and April 12th, 1918, secured two orders from *319 defendant for the purchase of approximately 10 tons of hen feed and 55 tons of horse and mule feed, at stipulated prices, subject to confirmation. The orders were reduced to writing and mailed to plaintiff. Plaintiff contended before and contends now that the order or offer of defendant was properly confirmed and accepted by plaintiff, and that owing to defendant's subsequent unauthorized refusal to accept the feed, defendant is liable for the difference between the price agreed upon and the proceeds realized by plaintiff from a resale thereof on a declining market. Defendant contended before for three propositions: (1) that there was no evidence of proper confirmation of the sale by plaintiff; (2) that there was no proof of any proper measure of damages; and (3) that plaintiff gave defendant no notice of his intention to resell. We found against the defendant on all of his propositions, and held in effect that on the record presented, plaintiff was entitled to a directed verdict for an amount which we fixed in the opinion.
Many of the facts are unchanged by the present record, and since they are unchanged, it will be necessary for those interested to look to our former opinion for much of the case. We shall note here certain distinguishing and controlling differences in the two records. Formerly, the plaintiff testified that he confirmed the offers upon their receipt, and immediately purchased the feed from the manufacturers in East St. Louis. This was not denied by defendant. Plaintiff now asserts the same propositions, and the manner of defendant's renunciation of the contract appears substantially the same as before, but defendant states in his testimony and his counsel argue in their brief that plaintiff did not communicate his confirmation of the contract to defendant prior to the latter's cancellation of his offer; that therefore there was no binding bargain. This and a proposition as to the want of proof of a fall in the market at the date of the resale constitute the present defense.
The copies of defendant's offers show that the order of April 12th was to be shipped in June, and the order of March 14th was to be shipped May 1st, to defendant at Follansbee, West Virginia, and they bear the stipulation "Subject to *320 Confirmation." While plaintiff insisted in both trials that he confirmed the orders promptly, he has introduced into this record a copy of his letter confirming the order of March 14th. It is dated March 16, 1918.
Plaintiff testifies he could not find the letter confirming the order of April 12th, but says it was similar to the one produced. Plaintiff's salesman, Stone, who took the orders, states that defendant showed him the confirmations. Defendant, on the other hand, denies that he ever received any confirmation of his offers. On April 29, 1918, defendant wrote plaintiff as follows:
"I am going out of the feed business and ask you if convenient for you to please cancel the orders I have with you for any future shipments.
"If this is not satisfactory please inform me so I can make some disposition and give further instructions.
"Thanking you in advance for the favor and for past favors and appreciating the pleasant dealings we have had with each other, I am,
"Yours truly, "J. M. SIMMONS."
On May 3d plaintiff replied to this letter in effect advising that he had no prospective purchasers with whom he could place defendant's orders, but advised that he would have his traveling salesman see if he could make some disposition of them, advising, however, that feed was hard to resell as the market was somewhat easier and purchasers were very timid. He also requested the defendant to see if he could not make some disposition, suggesting that he might get his successor to handle the two cars.
The next letter appearing in the present record is one dated June 13th, from defendant to plaintiff, as follows:
*321"In reply to your letter of June 11, regarding feed which you had booked for me, I gave you notice that I was going out of business and cancelled my orders on all purchases.
"You say you are taking the liberty to order a car forward. You will please not consign any shipments to me for I am out of the business and not in position to take care of them in any way."
Though not in the record, at least part of the contents of plaintiff's letter of June 11th may be surmised from defendant's reply.
Upon the showing made plaintiff says the contract was confirmed and binding upon defendant. Defendant says no confirmation was communicated to him prior to his withdrawal of his offer. On this issue plaintiff relies strongly upon our former opinion. At that time, as stated, the record included no copy of plaintiff's confirmation, and, upon the oral evidence, there being no express denial of confirmation by defendant, we said:
"The plaintiff, however, testifies that he confirmed the orders, and the defendant's letter of April 29th is a tacit admission that this is so."
If there had been no change in the record since we wrote the above words, plaintiff's argument would be forceful indeed. To our minds, however, we now face a different case, different in a respect apparently not fully recognized by counsel. We refer to the letter of confirmation now before us, and which was not shown at the first hearing of the case. Plaintiff bases his whole case of confirmation upon the sending of that letter and the one similar to it which he could not find. His salesman states he saw the confirmations in defendant's possession. Defendant denies receiving them. This was a clear issue of fact. But the thought occurs to us: suppose defendant did receive the confirmations in question, was the contract then sealed and beyond his recall? To answer this inquiry reference must be had to the writings themselves. The offer of April 12th reads:
*322"OHIO VALLEY GRAIN FEED CO. Coraopolis, Pa. 4-12-1918.
M M. J. Simmons Ship to Follansbee P. O. __________ When June How Ship P. R. R. Terms Citizens Bank 1 Car Dix H M 5950
SUBJECT TO CONFIRMATION J. M. Simmons, Buyer C. W. Stone, Salesman
The Simple Account Sales Book Co., Fremont, Ohio."
The order of March 14th is like the one above, except as to the kind and quantity of feed, and the date of the shipment.
We stated above that the confirmation, upon the language of which the plaintiff relies, is dated March 16, 1918. For the present inquiry its full contents must be reviewed. Omitting the printed heading the letter reads:
"Coraopolis, Pa., March 16, 1918.
Mr. J. M. Simmons, Follansbee, W. Va. Dear Sir:
We herewith acknowledge order For 10 tons Dixie Hen at 77.00 25 tons Dixie H M at 60.00 to be shipped May 1st, contingent upon strikes, car shortage, embargoes, railroad delays and all other causes beyond our control. Shipments to be made via P. R. R. Board of Trade weights final Terms: Draft B/L Citizens Bank."
There is a well established principle of law that to effectuate a contract of sale, there must be both a proposal and an acceptance of that proposal. Parks v. Morris, Layfield Co.,
"Authority merely to solicit orders and transmit them to the principal, as is usually the case with the so-called 'drummer' or traveling solicitor, clearly confers no power to accept the orders *323 so taken or to make a binding contract of sale. Such a power may, however, be conferred expressly, or it may arise by implication from a course of dealing, or from the general custom of the trade." 1 Mechem, Agency 2d ed. § 861. Accord: Hampton Mills v. Hershfeld, 201 N.Y.S. 556.
And although we have noticed no case in which the words "subject to confirmation" were used (except where the expression was defined by the custom of the trade as inJohnston v. Fairmont Mills, 129 F. 74), we have no doubt that the words were used here as meaning in effect, subject to the approval and acceptance of the seller, — approval of the salesman's act and acceptance of the buyer's offer. Where either of the latter words have been used, the decisions are uniform that there is no contract prior to the approval and acceptance by the principal. Cable Company v. Hancock,
As we said in the beginning, counsel have not considered the position we have taken, but to us it seems the controlling issue in the case. It also renders unnecessary a discussion of plaintiff's objections to certain evidence and instructions. Defendant withdrew his offers prior to acceptance thereof by plaintiff; no verdict other than one for defendant could be sustained on the record. We therefore affirm the judgment.
Affirmed. *325
