251 F. 252 | 8th Cir. | 1918
Writ of error from a directed verdict for defendant at the close of plaintiffs’ evidence in an action for damages arising from breach of contract.
The defendant contended that no binding contract existed, because the minds of the parties had not met upon the terms thereof. The court adopted this view. Plaintiffs insist that this was error for two reasons: (a) That defendant is estopped from taking this position, because it had before litigation given as its sole reason for nonperformance that this contract depended upon making another contract which was never executed; (b) that the minds of the parties met upon all of the essential terms of the contract.
“We beg to confirm our telephone conversation with you to-day, wherein we confirmed to Mente & Co.: ‘90,000 to 120,000 second-hand, mill run, rough rice bags, at 5%$ mill. Shipments, latter part of November to January, inclusive. Our option as to shipments during these months. These bags to be free from junk bags.’ In making shipments, if there are any junk bags in shipment, you are to allow us the best possible price for this grade of bags.”
This letter was forwarded by the agent to the plaintiffs, who responded as follows:
“Your letter 18th to Mr. Max Goldsmith is here, and we confirm same, but we understand these are to be shipped in ear lots, equal quantities monthly, November, December, January. Of course you understand we will have to have these shipments in car lots, as we could not stand D/C/L freight. We understand, in making the quantity 90,000' to 120,000, that you are to give us your entire output; the quantities named to be minimum and maximum, depending- on your actual output. In other words, no goods are to he sold or furnished to others from your output until yon have delivered ns the maximum of 120,000, if you mill this quantity.”
As the agent of plaintiffs who orally negotiated with defendant had no authority to bind his principal', the arrangement between him and defendant was of no greater legal standing than an offer by defendant to make a contract of those terms. Before that offer had been accepted, defendant replaced it with another contained in its letter above. The only acceptance of that offer is such as contained in the above letter of plaintiffs. A comparison of these two letters
Plaintiffs seek to avoid the apparent difference between the offer and acceptance by testimony that the expressions “90,000 to 120,000’’ bags meant the entire output of defendants between those figures, and that the custom of the bag trade was to ship in carload lots and in equal monthly quantities. They claimed that such explanations would show the letters harmonious upon all essentials of the contract. The court excluded these offers, upon the theory that the contract must be found, if at all, in the writings, which he took to be clear, unambiguous, and complete. We find it unnecessary to pass upon these rulings upon the evidence. Conceding, hut not at all deciding, that plaintiffs had the right to and could have shown all they sought, yet we think there would still be a fatal difference between the offer and acceptance. There would be left the requirement in the acceptance that defendant could not sell bags to any one else until it had furnished 120.000 to plaintiffs in equal monthly shipments during the months of November, December, and January. No such restriction is suggested in the offer. Its materiality is self-evident. In our judgment the minds of the parties never met, and the action of the trial court in directing the verdict was proper.
The judgment is affirmed.