52 Ind. App. 11 | Ind. Ct. App. | 1912
This is an action for damages alleged to have been sustained by appellants on account of the breach of a contract for the delivery of corn.
The complaint is in two paragraphs a demurrer to each of which was sustained. Appellants refused to plead further and judgment was rendered against them that they take nothing by their suit and that appellee recover his costs. From this judgment appellants appeal.
In fact, as we understand their brief, appellants recognize the law to be as above stated, their contention being that the three letters, made a part of each paragraph of complaint, when taken together, are of themselves sufficient to constitute a written contract between the parties. This being true, the only question to be determined is whether the three letters referred to are sufficient to constitute such contract.
We set out these letters in full. According to the averments of the complaint, the first letter was written by appellee after a conversation held between him and appellant Bert Miller over the telephone, and is as follows:
“Frankfort, Ind. August 3, 1909.
Mr. Burt Miller,
Flora, Ind.
Dear Sir
Will write you one cannot talk on phone what they would like always to say what can you engage new corn at delivered in Dee. I may sell mine So if you are not
N. B. Sharp.”
It is averred that this letter was received by appellants the day it was written, and Mr. Miller, on behalf of himself and his coappellant, answered it on the day it was received, as follows:
“Plora, Ind. Aug 3, 1909.
Mr. N. B. Sharp,
Frankfort, Ind.
Sir
Yours at hand and note you say you want to sell your corn new and old this market is lower all around for everything. Could give you 45 cts. pr bu for your new and 94 cts. pr hundred For Old corn that is on today bid,
So if you want to sell let me know by return mail and Oblige Yours truly,
Miller & Walker.”
It is then averred that appellee by return mail — namely, on August 4, 1909 — accepted said proposition for the new corn then growing on the farm, and to be harvested in 1909, which said letter of acceptance is in the words and figures following:
“Frankfort, Ind. August 4, 1909.
Mr. Burt Miller Flora Ind
Dear Sir
did not receive your letter in time to write on morning train Sometimes I think they take mail Past and then back at any rate I was at the office at 9 a. m. and your letter was not there as to the corn I will Sell the corn on the ITome Farm at your Price 45 cts. p Bu their is 48 acres out 24 for me and will be about 800 Bu I think may be my wife will Sell the corn at Coups
N B Sharp.”
It is insisted by appellee that the judgment of the court below, holding that these letters were not sufficient to show a contract between the parties, was correct for the following reasons: (1) Because the letters themselves do not indicate where the corn was to be delivered, and that in such case the delivery would be presumed to be at the place where the corn was situated at the time of the making of the contract, and that the complaint does not aver a demand by appellants at such place. (2) Because appellants’ proposition to pay forty-five cents a bushel for the new corn and ninety-four cents a hundred for the old was made subject to the condition that it was on that day’s bid, and that the letter showing the alleged acceptance of the proposition shows that such acceptance was not had until the following day. (3) Because appellee’s first letter to appellants showed a desire on his part to sell all of his corn, both old and new, and that he sought a proposition covering the corn, both old and new; that appellants’ proposition was made fixing a price on the old corn as well as the new, and that the alleged acceptance • related to the new or growing corn only, and was not an acceptance of the proposition as made; that for this reason appellants could have refused to comply with their proposition, and this being true and appellants not being bound by an offer accepted in part only, it follows that appellee was not bound by such acceptance.
As to the first ground of appellee’s contention, it is insisted by appellants, in effect, that while the letters in this case must be sufficient to create the contract, they may be read and interpreted in the light of a known custom or usage of the parties to the contract in relation to the place of delivery, and that the averments of each paragraph of the
In view of the conclusions we have reached on the other grounds of appellee’s contention, we deem it unnecessary to set out the averments of the paragraphs of the complaint as to said custom and usage, or to determine their sufficiency in this respect.
We think that the complaint is open to the other grounds of objection urged by appellee, and that for this reason the demurrer to each paragraph was properly sustained.
Appellants understood from the letter received that appellee wanted a price for both old and new corn, as evidenced by the following language in their letter: “You say you want to sell your corn new and old” and they made their proposition accordingly, viz.: ‘ ‘ Could give you 45 cts, pr. bu. for your new and 94 cts. pr. hundred for old
In Potts v. Whitehead, supra, at page 514, it is said: “An acceptance, to be good, must, of course, be such as to conclude an agreement or contract between the parties. And to do this, it must in every respect meet and correspond with the offer, neither falling within nor going beyond the terms proposed, but exactly meeting them at all points and closing with them just as they stand.” See, also, Carlmel v. Newton, supra; Johnston v. Stephenson (1872), 26 Mich. 63; Tilly v. Cook County, supra; Arthur v. Gordon (1889), 37 Fed. 558.
For the reasons indicated, we think it appears from the letters relied on as constituting the contract in this case that the minds of the parties to be bound thereby never agreed on the same thing, and therefore, under the authorities, no contract was ever created between them. Neither paragraph of the complaint stated a cause of action, and the demurrers thereto were properly sustained.
Judgment affirmed.
Note. — Reported, in 100 N. 10. 108. See, also, under (1) 9 Cyc. 753; (2) 9 Cyc. 245; (3) 35 Cyc. 52; (4) 9 Cyc. 265.