161 P. 922 | Utah | 1916
The plaintiff, a corporation, sued the defendant, also- a corporation, to recover damages for breach of contract. It is, among other things, alleged in the complaint that the defendant had refused to receive three carloads of silos which it had ordered or purchased from the-plaintiff. The defendant denied the contract of purchase, and, as an affirmative defense, averred that if a contract was entered into it was oral
The place of business of the plaintiff corporation is in Tacoma, Wash., where it is engaged in the manufacture of the material for wooden silos, and the principal place of business of the defendant corporation is at Salt Lake City, Utah, where it is engaged in the business of selling and distributing all kinds of farm machinery and other implements. During the early part of the year 1914, the defendant, through its so-called sales manager, B. P. Critehlow, entered into correspondence with the plaintiff for the purpose of ascertaining prices and terms on the silos manufactured by it. All of said correspondence was produced in evidence at the trial and is set out in the bill of exceptions. Pursuant to the letters written by the sales manager as aforesaid, the president of the plaintiff, in April, 1914, came to Salt Lake City and conferred with the defendant respecting the purchase of silos by it. The evidence shows that at that time Mr. Holland met and conferred with the sales manager and the assistant general manager of the defendant. The three discussed the question about purchasing silos manufactured by the plaintiff. The evidence shows without dispute that from lumber and other material the plaintiff manufactured the different parts of which the silos were made; that it did not keep in stock the manufactured articles, but prepared them upon order; and that it generally sold the manufactured or prepared material to dealers throughout the western country in carload lots. The purchasers of the material for silos would assemble or put together the material manufactured or prepared by the plaintiff, and would thus build up or construct the silos at such places and in such sizes as was desired. The material for the silos was prepared in such fashion that out of the same material any particular size that might be desired by the purchaser could be constructed. After a full discussion between the defendant’s sales manager and its assistant general manager and Mr. Holland of all the matters pertaining to the silos manufactured by the plaintiff, the defendant’s sales manager entered into a memorandum of agreement with
"An acknowledgment of your order as we understand it. If correct, advise us immediately. All orders subject to strikes or accidents beyond our control.
"Your order No.-. Date Apr. 11,1914.
"Ship to Consolidated Wagon & Machine Co.,
"Address Salt Lake, Utah.
"Ship when-.
“Via -..
“Our order No. 7716. Date Apr. 11, 1914.
"Invoice to Consolidated Wagon & Machine Co.
"Address Salt Lake, Utah.
"Freight allowed, 40c per 100 lbs.
"Terms 2% 10 days — 60 days net.
'"3 carloads Crown silos. Sizes to be specified within two weeks. 20% from, our list.
"I suggest that in making these specifications that large sizes 16x32 or larger in spliced staves be ordered; then smaller sizes can.also be made from same stock.
T. S. Holland..
"For Idaho Falls, Twin Falls and Salt Lake Territory, O. K. B. P. Britchlow, Sales Mgr. 4-11-14.” (Italics ours.)
What is it that the defendant purchased ? By referring to the memorandum it will be seen that it purchased “ three carloads Crown silos. ” Defendant was given two weeks’ time, however, in- which to determine the sizes of silos it desired. The evidence is without dispute that from the material contained in the three carloads purchased by the defendant all sizes of silos manufactured could be constructed. If. that be so, we cannot see how the sizes of the silos were material. For the purposes of this decision we shall, however, treat the sizes of the silos as being material. In doing that, however, we do not concede counsel’s contention that the memorandum was left incomplete and so uncertain as to be unenforcable.
“Tkese contracts are definite as to tke quantity of springs and axles, and as to tke price and time of delivery, and notking remained kut tke specification ky tke defendant of tke sizes and varieties. A*49 failure on the part of the defendant to keep its agreement to make these specifications as provided is the only way in which the contracts could he rendered uncertain; and it would he illogical to hold that by a breach of that part of the contracts the defendant could relieve itself of all the obligations it had assumed, and take the springs and axles only so long as the price of steel advanced, and, by failing to specify when the market declined, throw the loss upon the plaintiff. These were not options given to the defendant, but definite agreements by it for the purchase of the property mentioned, and the provisions for the specifications to be furnished did not make them so uncertain that an action did not lie for their breach. Hinckley v. Pittsburgh Steel Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967; Kimball Bros. v. Deere, Wells & Co., 108 Iowa 676, 77 N. W. 1041; Ault v. Dustin, 100 Tenn. 366, 45 S. W. 981; Minn. Lumber Co. v. Coal Co., 160 Ill. 85, 43 N. E. 774, 31 L. R. A. 529. The defendant cites many cases which are claimed to sustain its view, but they lack the agreement to take a quantity of goods, which is made certain by the contract itself, or could be made certain by evidence; thereby differing from the contracts here, where a definite quantity is fixed, and only its apportionment is to be made by the defendant.”
In. the case of Hinckley v. Pittsburgh, etc., Co., supra, the decision is correctly reflected in the headnote, which reads:
“The defendant agreed, in writing, to purchase from the plaintiff rails to be rolled by the latter, ‘and to be drilled as may be directed,’ and to pay for them $58 per ton. He refused to give directions for drilling, and, at his request, the plaintiff delayed rolling any of the rails until after the time prescribed for their delivery, and then the defendant advised the plaintiff that he should decline to take any rails under the contract. Held: (1) The defendant was liable in damages for the breach of the contract. (2) The plaintiff was not bound to roll the rails and tender them to the defendant. (3) The proper rule of damages was the difference between the cost per ton of making and delivering the rails and the $58.”
We shall not quote, neither is it necessary to do so, from any of the other cases.
Counsel also urge that the sales manager had no authority to enter into the agreement to purchase the three carloads of silos. Without setting forth the evidence upon that question, it must suffice to say that if he court, under the evidence in this record, should hold that the sales manager and the assistant general manager acted without authority, and that therefore the defendant was not bound by their acts, the transaction of business with corporate officers or agents would become hazardous indeed, and such a holding would prove very mischievous in the long run. We unhesitatingly state that the record leaves no doubt respecting the authority of the sales manager and the assistant general manager.
There are a number of other assignments, but none of them
It is not necessary to reverse the judgment, nor to enter a conditional order granting a new trial, for the reason that plaintiff’s counsel have agreed that the difference is $144. In view of counsel’s consent, it is ordered that the plaintiff remit from the judgment, as of the date it was entered in the district court, the sum of $144, and the judgment, as thus modified, will be affirmed.
For the reasons stated, therefore, the judgment appealed from is modified by deducting from the amount thereof the sum of $144 as of the date the judgment was entered in the court below, which reduces the" amount of the judgment to the sum of $1,604.34^ and to that extent and for that amount it is affirmed. Neither party to recover costs in this court.