19 Ind. App. 44 | Ind. Ct. App. | 1898
— On the 1st day of October, 1894, the appellee, residing at Oxford, Mich., sent through the mail the following letter: “Oxford, Mich., Oct. 1, 1894. Mummenhoff Co., Indianapolis, Ind. Gentlemen: Can we not get to doing some business? T quote you the following low price on potatoes, either in straight cars or in mixed, part of each kind of vegetables. Would quote you potatoes at 35 cts., rutabagos 25 cts., 62 No. carrots 35 cts., 55 No. onions, either red or yellow. The carrots are both long and yellow. The price on delivered track Indianapolis. My certified weights guaranteed within 2 per cent. Yours truly, C. L. Randall, per N. B.” This letter was dictated by appellee to a stenographer, who wrote the same out on a typewriter, and by the mistake and inadvertence of the stenographer in typewriting the same from her stenographic notes she wrote in said letter the price of potatoes at 35 cts. per bushel, instead of the price of 55 cts., as was dictated to her by appellee. This letter was received by appellant at Indianapolis, Ind., on the 2d day of October, 1894, and appellant at once sent to appellee an order by mail as follows: “Indianapolis, Oct. 2, 1894. Mr. C. L. Randall, Oxford, Mich. Dear Sir: We are in receipt of your favor of the 1st inst. Please ship us two or three cars of potatoes at your earliest convenience, at price quoted. If you have good stock, we shall give you a good many of our orders. Resp’y, Mummenhoff & Co.”
Appellee, upon the receipt of the said order, and being ignorant of the mistake of the stenographer, as before set out, accepted appellant’s order as being an order for the number of cars of potatoes mentioned by
Notwithstanding appellee’s telegram, appellant received, accepted, and used the two cars of potatoes, and, knowing that the quotaion of 35 cents in the letter of October 2d was a mistake, refused to settle upon any basis other than thirty-five cents per bushel.
The demurrer to the first paragraph of appellee’s complaint was properly overruled. Under the allegations of this paragraph of complaint the minds of the contracting parties never met upon a proposition to sell potatoes at thirty-five cents per bushel, because it is alleged that the price was a mistake and that it was so understood by appellant to whom it was made. “As mutual assent is necessary to the formation of a contract [i. e., of sale] it follows that an error or mistake of fact in that which goes to the essence of the agreement, and therefore excludes such assent, prevents the formation of the contract, since each party is really agreeing to something different, notwithstanding the apparent mutual assent.” 21 Am. and Eng. Ency. Law. 459.
We think it is plain that there was no contract by appellee to sell the potatoes at thirty-five cents per
The second paragraph of answer was clearly insufficient, and for that reason alone the objection that the demurrer was not in proper form cannot avail the appellant. Blue v. Capital National Bank, 145 Ind. 518; Field v. Brown, 146 Ind. 293.
The other questions argued by counsel arise upon the motion for a new trial, and depend for their solution upon the evidence. Counsel for appellee contend that the evidence is not in the record. Their contention must be sustained. The rule is well settled by a long line of decisions of this court and of the Supreme Court of this State, that the record must affirmatively show the filing of the longhand manuscript of the .evidence in the clerk’s office prior to its incorporation in