115 Mo. App. 701 | Mo. Ct. App. | 1906
(after stating the facts.) — It will be observed that defendant’s letter of September twenty-fourth contains no direct offer to sell flour in jute sacks, at five dollars and ten cents per barrel, but that it is a mere quotation of that day’s market. On the strength of this quotation plaintiff telegraphed defendant as follows: “Send hundred fifty barrels Gold M'edal jute at your quotation of Sept, twenty-fourth.” The flour was shipped, consigned to defendant, and billed at six dollars and ten cents per barrel instead of five dollars and ten cents, the market price previously quoted. On the trial the learned circuit judge held that the evidence failed to prove that a contract for the sale and delivery of the flour had been consummated, but after the verdict changed his view and granted a new tidal. Which of these views is correct, is the question'presented for decision by the appeal.
In Am. & Eng. Ency. of Law (2 Ed.), vol. 7, p. 138, par. 2, it is said: “A quotation of prices is not an offer to sell, in the sense that a complete contract will arise out of the mere acceptance of the rate offered or the giving of an order for merchandise in accordance with the proposed terms. It requires the acceptance by the one naming the price, of the order so made, to complete the transaction. Until thus complete there is no mutuality of obligation.” In volume 24, of the same work, at page 1029, it is said: “The offer must be distinct as such, and not merely an invitation to enter into negotiations upon a certain basis.”
“Merely naming a price does not necessarily import an assent to sell to the inquirer at that price,” says Benjamin in his work on Sales (6 Ed.), page 73. He il
. The Kansas City Court of Appeals, in James & Sons v. Fruit Jar & Bottle Co., 69 Mo. App. l. c. 213, quoting from Bruner v. Wheaton, 46 Mo. l. c. 366, held: “To constitute a valid contract there must be a mutual assent of the parties thereto, and they must assent to the same thing in the same sense.”
But the letter does more than quote the market price of flour; in effect, it said to plaintiff that defendant would All his order for flour at the price quoted, if he would wire his order immediately on receipt of the letter. Plaintiff, on receipt of the letter, immediately wired his order, hence there was a complete contract for the flour, unless it failed or is invalid on account of a mistake in quoting the price of flour, in jute sacks, patent on the face of defendant’s letter of September twenty-fourth. That the quotation of Gold Medal flour in jute sacks at $5.10 per barrel is a mistake or typographical error, we think is heyond doubt. The same brand of flour was quoted at six dollars per barrel, in bulk; in sacks its market value could not have been less than six dollars, but was necessarily six dollars per barrel, plus the value of the sacks and labor of sacking it. Plaintiff was an experienced buyer of flour and must have known the quotation was an error, therefore, his order was an attempt on his part to take advantage of defendant’s error and make a profit for himself. That a binding contract cannot arise in such circumstances is too plain for argument. The shipment was to defendant, not to plaintiff, and he was not authorized to re
The judgment is reversed and the cause remanded with directions to the circuit court to overrule the motion for new trial and enter judgment on the, verdict of the jury.
