200 Ky. 113 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
This is an appeal from a judgment whereby the appellee, Thos. S. Jones & Company, recovered of the appellant, C. W. Craig & Company, in the court below $5,488.00 by way of commission, at 25 cents per gallon on 681 barrels of whiskey, 32 gallons per barrel, alleged to have been sold by the former as a broker for the latter. By agreement of the parties the cause was tried by the court without the intervention of a jury.
Negotiations looking to the placing of the whiskey in the hands of the appellee for sale began September 18, 1918, with a visit to the latter’s office in Louisville by Craig, the head of the appellant company, on that mission,. Avho represented that hisi company had about a thousand
The contract between the parties is to be determined from certain letters and telegrams passing between them. To copy all of them in the opinion would serve no good purpose. On October 22, 1918, Jones & Co. sent Craig & Co. the following telegram:
“Louisville, Ky., Oct. 22,1918.
“C. W. Craig & Co.,
436 Battery St.,
San Francisco, Cal.
“Have sold for your account to a Chicago firm your entire holdings about seven hundred barrels of Hermitage Bourbon, Hermitage Rye and Old Crow tax paid, re-gauged distillery less all charges paid to date, we to receive as commission the excess price over four dollars twenty-five cents per proof gallon regauged after your' drafts have been paid. Wire confirmation and guarantee of quality and cooperage and we will give you billing instructions by wire. In your reply give us exact number of' barrels of each brand of each age and put the word period after each lot you mention in your reply. Mailing you exchange for Bonnie and Dickel shipments.'
“Thos. S. Jones & Co.”
‘‘San Francisco, Cal., Oct 22.
“Thos. S. Jones & Co.,
Louisville.
“Accept offer; have called off all selling goods guaranteed. “C. W. Craig & Co.”
Pursuant to these telegrams Jones & Co. sold the purchaser the whiskey, supposing it to be not less than 676 barrels as indicated in the telegram from Craig & Co. of October 19, 1918, which was in these words:
“San Francisco, Cal., Oct. 19,1918.
“Thos. S. Jones & Co.,
Louisville, Ky.
On hand today Hermitage Rye forty-six spring three twelve spring four seventy spring five ninety spring ten Hermitage Bourbon ten spring nine one hundred eighty-five fall none Old Crow one seventy spring seven eight seven spring eight. If Bonnie did not take fifteen Hermitage nine then we have two hundred no option. Cannot withdraw all sales subject to prior sale.
“C. W. 'Craig & Co. 12 3-33 a. m.”
This telegram, it is shown by the evidence, called for 676 barrels of whiskey.
A contract by correspondence is complete when the answer containing a direct and unqualified acceptance of a distinct offer is dispatched by mail or wire. Shaw v. Ingram O’Day Lumber Co., 152 Ky. 329; Hutchison v. Blakeman, 3 Met. 80. We do not see that this case can be distinguished from Fairmount Glass Works v. Crunden-Martin Woodenware Co., 106 Ky. 659, for the telegrams passing in that case are substantially like those in this case, and it was there held that the contract was complete.
Appellee in its telegram of October 22, 1918, made a definite proposition and this definite proposition was accepted without qualification or reservation. On October 19 appellant had indicated to appellee, at its request, the quantity of whiskey on hand but had said that all sales Were subject to prior sales, so appellee in the telegram of October 22 said: “In your reply give us exact number of barrels of each brand. ’ ’ If there- had been any change in the number of barrels for sale it was incumbent upon
The discrepancy is too large. A delivery of 284 barrels is not a compliance with an unqualified acceptance of an offer for about 700 barrels. No one receiving such an acceptance would reasonably so understand the contract, or know how to conduct his business if such a construction of the contract was upheld. If only 284 barrels of whiskey were unsold appellant should have apprised appellee of the fact instead of accepting the latter’s offer for the, larger number of barrels without qualification
We rest our judgment here. It appears from the evidence that appellant had made a like arrangement with other brokers. If these brokers had. sold a part of the whiskey before October 22, and appellant had confirmed the sale, it was incumbent upon them to so inform appellee in their wire of October 22. If these sales by other brokers had not been confirmed before October 22 they could not be confirmed after October 22 so as to affect appellee’s rights.
There was no substantial error in the refusal of the court to set aside the submission and open the case after it had been argued and submitted, and the court had indicated orally from the bench his conclusions upon the evidence. The proposed evidence was such as should by reasonable diligence have been produced on the hearing.
Judgment affirmed.