31 Mont. 279 | Mont. | 1904
prepared the following opinion for the court:
This is an appeal by defendant from a judgment in favor of plaintiff and from an order overruling a motion for a new trial.
P. J. Brophy was doing business under the name of P. J. Brophy & Oo. The defendant was a corporation. The contro
Section 2185 of the Civil Code provides: “The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or his agent: * * * (4) An agreement for the sale of goods, chattels or things in action, at a price not less than two hundred dollars, unless the buyer accept or receive part of such goods, chattels or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money * * *”
Section 2340 of the Civil Code provides: “No sale of personal property, or agreement to buy or sell it for a price of two hundred dollars or more, is valid, unless: (1) The agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged, or by his agent; or, (2) the buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evidences thereof, or some
Section 3216 of the Code of Civil Procedure provides: “In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents; * * * (4) An agreement for the sale of goods, chattels or things in action at a price not less than two hundred dollars, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money. * * *”
As above stated, the proof-must, therefore, have shown an agreement which is covered by Subdivision 4 of Sections 2185 of the Civil Code and 3216 of the Code of Civil Procedure and by Section 2340 of the Civil Code. The evidence of the sale under Section 3216 of the Code of Civil Procedure must be in writing, or secondary evidence of such writings, and perhaps such oral testimony as is explanatory of ambiguities in the' writings.
The- alleged contract consists of the following correspondence between the parties: It seems that about September 6, 1901, appellant sent to respondent a trade circular (which is not in evidence), by which it announced the fact that it was prepared to furnish farm produce to purchasers. On September 10, 1901, respondent wrote the following letter to appellant: “Gents: ^Replying to your favor of the 6th inst.j we will be pleased to have you quote us prices on potatoes for winter use, say from six to ten cars, shipments to be made within the next six weeks. Tour very best efforts in this direction will be appreciated by, yours truly.” By this letter respondent requested appellant to make him' a proposition or offer to sell “from six to ten cars” of “potatoes for winter use,” to be shipped “within the next six weeks.” In reply to this letter appellant sent respondent the following under date of September 12th: “Tour favor of the
Judge Graves, of the Supreme Court of Michigan, in the case of Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37, states the rule as to the acceptance of an offer in the following clear and concise language: “In order to convert a proposal into a promise, the constituents of the acceptance tendered must comply with and conform to the conditions and exigencies of the proposal. The acceptance must be of that which is proposed, and nothing else, and must be absolute and unconditional. Whatever the proposal requires to fulfill and effectuate, acceptance must be accomplished, and the acceptance must include and carry with it whatever undertaking, right or interest the proposal calls for, and there must be an entire agreement between the proposal and acceptance in regard to the subject-matter and extent of interest to be contracted. If the parties do not refer to the same things in the same sense, the transaction is simply one of proposals and counter proposals.” This language is quoted with approval by Mr. Mechem in his work on Sales (Section 288), and numerous other cases are’cited in its support.
In Potts v. Whitehead, 23 N. J. Eq. 514, the court says: “An acceptance, to be good, must, of course, be such as to conclude an agreement or contract between the parties. And to do this it must in every respect meet and correspond -with the offer, neither falling within nor going beyond the terms proposed, but
The Supreme Court of the United States, in the case of Minneapolis, etc. Ry. v. Columbus R’g Mill, 119 U. S. 149, 7 Sup. Ct. 168, 30 L. Ed. 376, says; “As no contract is complete without the mutual assent of the parties, an offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation upon either party; the one may decline to accept, or the other may withdraw his offer; and either rejection or withdrawal leaves the matter as if no offer had ever been made. A proposal to accept or an acceptance upon terms varying from those offered is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer renews it, or assents to the modification suggested. The other party, having once rejected the offer, cannot afterwards revive it by tendering an acceptance of it.” In fact, the cases holding this doctrine are legion, and no occasion arises for incumbering this opinion with further citations.
Now, remembering that the proposal ivas to sell “ten cars of nice white potatoes (Peerless stock) at 60c. per hundred, sacked, f. o. b. Rexburg,” or “some stock, but a little scabby, at 55c. per H. at this point,” which potatoes were to be for winter use, and shipped within six weeks after September 10th, let us see what action the respondent took upon such proposal, and whether or not he accepted the same within the rules above laid down. Respondent replied to the letter of September 12th, above quoted, on the 14th of September, in the following language: “We have your favor of the 12th inst. and would be glad to have you ship us immediately, as we are entirely out of Stock now, one carload of potatoes. Will instruct you as to the balance later, but your expedition in this matter will be highly appreciated.” Nothing is said herein as to whether respondent accepts either of the propositions stated in appellant’s letter of the 12th, but orders one carload' of potatoes. He does not say whether such car shall be of the nice white potatoes (Peerless stock), or of the
Do these two letters, or either of them, constitute an acceptance of the proposal made by the appellant, within the rule above announced? We do not think they do. In the first place, the offer was ten cars of “nice white potatoes (Peerless stock).” The letter of the 18th refers to an offer of ten cars of “choice potatoes.” Whether or not “nice potatoes (Peerless stock)” and “choice potatoes” are of the same grade and price the evidence does not disclose, and we are therefore left in doubt. The word “choice” is defined as “meriting preference; having-special excellence; select; precious.” (Standard Dictionary.) The -word “nice” is defined: “(1) Characterized by discrimination and judgment; acute; discerning-. * * * (4) Exactly fitted or adjusted; accurate; apt. * * * (5) Delicately eonstructedj hence, easily disarranged or injured; fragile; tender. (6) * * * Agreeable or pleasant in any way. * * "::‘ Specifically: pleasing to the senses.” (Standard Dictionary.)
But again, in the letter of the 18th respondent says, “You of course will select the stock for us and send us no small ones.” It will be noticed that nothing of this kind is stated in the offer • — simply “ten cars of nice white potatoes (Peerless stock),” By the proposal it was undoubtedly intended to offer to defendant ten cars of nice potatoes (Peerless stock), as they run from the digging of the same; not that there should be no small ones among them. The small potatoes may be as nice as larger ones, but not as choice. We are of the opinion that this was a variation from the proposal.
Again, respondent says in the letter of the 18th, “We expect the cars to average 30,000.” Nothing is said in the proposal about the average weight of the cars. The proposal was to send, ten carloads of potatoes. The number of pounds of potatoes ip each car, therefore, would be such as are usually loaded in a car for transportation, and would depend somewhat,on the size of the cars, and the rules of the railroad company shipping the potatoes as to the weight which might be prrt in each car. We are of the opinion that this also was a variation from the proposal.
But again, the proposal was for ten carloads of potatoes. By respondent’s letter of the 12th of September he says: “We would be glad to have you ship us immediately as we are entirely out of stock now one carload of potatoes. Will instruct you as to the balance later, but your expedition in this matter will be highly appreciated.” In the letter of September 18th respondent says: “By the way, if you have shipped the first car by this time we can use another one shipped on or about the 1st of October, and the eight for winter storage may then come along as above indicated, commencing about the 12th.”
We find in respondent’s testimony disclosed in the record the following statements: “I have said that the one caí of potatoes which I paid for at 90 cents per hundred has nothing to do with
It is apparent from the record that several communications passed between the parties which were not offered in evidence, and are therefore not in' the record. It may he that such communications would have explained a great many apparent inconsistencies in the letters and telegrams in the record, but, not
It would have been very eásy for respondent, upon receipt of appellant’s letter of September 12th, to have written in reply, “We hereby accept the first proposal contained in your letter of September 12th.” This would have covered the entire matter. This would have established a valid contract, under the statutes of this state, for the sale and delivery of ten cars of nice white potatoes (Peerless stock) at the price of 60 cents per hundred, f. o. b. Rexburg; but this acceptance was not given. Respondent, in his letters of the 14th and 18th of September, ordered two cars of potatoes for immediate use, which he says were not potatoes fit for winter storage, and by this letter of the 18th directed that the remaining eight cars for winter storage should
It will be noticed that in the brief of respondent the position is taken that, the defendant in the court below declining to offer any testimony and submitting the action to the court upon the testimony of plaintiff, was, in effect, a motion for a nonsuit, and respondent urges that the law has been declared by this and other courts that a motion for nonsuit is deemed to admit the truth of all the evidence introduced by plaintiff, and that every fact which the evidence tends to prove and all reasonable deductions therefrom must be conceded to have been established for the purpose of deciding the motion, and all conflicting inferences or presumptions arising from the evidence must be resolved in favor of plaintiff; that the court'is bound to give the evidence the most favorable construction for plaintiff which it .will possibly bear. In this position counsel for respondent have fallen into error. There is no rule of law which requires a defendant in the trial of a case in the court below to offer any evidence. If he is satisfied that the evidence introduced on behalf of plaintiff is not sufficient, upon any theory, to warrant a recoveery, he may avail himself of that position by making a motion for nonsuit, which is, in effect, raising a point of law, and is tantamount to saying, “We admit the truth of all your evidence, but say as a matter of law that it is not sufficient”; or he may proceed upon another theory, and that is that the jury will not believe the testimony introduced by plaintiff, and submit the case for a finding of the jury upon the evidence the plaintiff has introduced. And upon this proposition it must be remembered thaf the burden is upon the plaintiff to establish by a x>rex>onderance of the evidence the allegations of his com
AVe are clearly of the opinion that the .record does not disclose an acceptance of appellants proposition under the authorities above cited, and therefore that the plaintiff failed to show a valid contract. Therefore the case must be reversed, and we so advise.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment and order are reversed, and the cause is remanded.