47 Ind. App. 392 | Ind. Ct. App. | 1910
— This is an action brought by appellee to re-, cover a balance of $332.90 alleged to be due from appellant for goods sold and delivered by appellee to appellant. The complaint alleges the amount due, having attached a bill of particulars setting out the dates and amounts. To this complaint an answer of general denial was filed, also an amended
The counterclaim is based upon the following correspondence between appellant and appellee:
“Order No. 6,504. Ilaskell & Barker Car Company.
Duplicate. Michigan City, Indiana, January 24, 1905.
Allegheny Forging Company, Pittsburg, Pennsylvania.
Gentlemen: Please enter our order for the following material for shipment as specified below:
36 winding chains, inch short straight link plain chain, with -1 inch long link at one end. Length over all 4.8£ inches.
Delivery: \ by February 15, 1905.
■I by March 1, 1905.
Price: $2.95 per 100 lbs. f. o. b. Michigan City,Indiana.
Terms: 30 days or 1 per cent off for cash in 10 days.
Yours very truly,
John H. Barker, President.”
“Allegheny Forging Company.
Pittsburg, Pennsylvania, January 28, 1905.
Order — Chain.
Haskell & Barker Car Company, Michigan City, Indiana.
Gentlemen: We have your esteemed favor of the 24th inst., with order No. 6,504 for inch chain, which we have entered for our best attention, and expect to make shipment by the time you specified.
This we understand completes the lot of chain on which we quoted December 12.
Very truly yours,
Allegheny Forging Company,
O’Refior.”
Your order No. 6,504 of the 24th inst. for chains has been entered as our No. 4,372. "We expect to ship same within ... days.
Thanking you, we are,
Yours truly,
Allegheny Forging Company,
W. Taylor.”
The counterclaim avers the acceptance of the order by appellee; that a portion of the chains were forwarded to appellant, in compliance with the contract, but that all were not delivered, although request was made for them; that, by reason of the failure of appellee to comply with its part of the contract, appellant was compelled to go into the open market and purchase that portion of the chains which appellee had failed to deliver in accordance with the contract, and to pay therefor the sum of $84 in excess of the amount for which appellee had agreed to furnish said chains to appellant; that appellant was engaged in the manufacture of freight-cars in Michigan City, Indiana; that the chains mentioned were purchased for use in a certain order of cars, and were required for such purpose at a fixed time, which facts were well knorm to appellee at the time said contract was made; that by reason of the failure of appellee to supply appellant with such chains, in accordance with its contract, the manufacturing business of appellant was delayed and disarranged, to its damage in the sum of $100. There is also a claim of damages for expense of telegram and telephone messages.
So in the case at bar, when appellant received the answer of appellee as to order No. 6,504, dated January 24, 1905, which said: “We have your esteemed favor of the 24th inst., with order No. 6504,” etc., it seems to us that appellant knew the order had been accepted, and so understood and treated it.
Giving these letters their ordinary meaning, as understood in the commercial world, we are unable to see why the minds of the parties did not meet, and make a complete and enforceable contract between them. Jordan, Marsh & Co. v. Patterson (1895), 67 Conn. 473, 35 Atl. 521; Bauman v. McManus, supra; 1 Beach, Contracts §65.
Moreover, it is averred that a part of the chains had been shipped in compliance with the order. This shows that appellee treated the order as accepted, and, therefore, for this additional reason, the contract was completed and binding. Cherokee Mills v. Gate City Cotton Mills (1905), 122 Ga. 268, 50 S. E. 82; Star Union Line v. Boston Medical Institute (1906), 126 Ill. App. 106; Jordan, Marsh & Co. v. Patterson, supra.
The court erred in sustaining the demurrer to the counterclaim, for which this cause must be reversed.
We do not pass on the other error assigned, for the reason that at the retrial of this cause this question may not arise.
Judgment reversed, with leave to both parties to amend the pleadings if they so desire.