253 F. 161 | 6th Cir. | 1918
Plaintiff in error, whom we shall call defendant, was a manufacturer of glass at Pittsburgh, and liad a warehouse at Cincinnati, where it kept on hand for sale quantities of glass of various sizes. Defendani in error, plaintiff below, was a Cincinnati jobber of glass. Plaintiff sued on an alleged contract, dated January 3, 1916, taking the form of a letter to plaintiff from defendant, and signed by it, as follows:
*162 “In accordance’with our personal conversation, we have entered your order for polished plate glass, for anything we can furnish from our warehouse, these discounts to apply until June 30, 1916, as follows: [Sizes and discounts here’ stated] — all from the current list of May 1, 1914, and subject to 1 per cent. ■ for cash. I am writing this letter in duplicate, and will- thank you to sign and return one copy at your earliest convenience.”
The letter bears on its face the word “Accepted,” followed by plaintiff’s signature. The petition avers that plaintiff gave defendant, under the contract, certain orders for glass which were filled, and gave from May 26 to June 29 other orders for glass, “which defendant could furnish from its warehouse, but which it failed and refused-to fill.” Plaintiff demanded the difference between the aggregate market- and contract prices respectively of the glass not furnished. A demurrer to the petition, as not stating a cause of action* was overruled. Defendant then answered issuably. A trial by jury resulted in verdict and judgment for plaintiff. Defendant’s motion for new trial was overruled. On this review, the only proposition open to defendant is that the petition fails to state a case. The proceedings on the trial are not brought up.
Defendant’s contention is that the contract is void, as unilateral and lacking mutuality or consideration. The argument is that the contract was merely an offer by defendant to sell to plaintiff such glass of the sizes and kinds named as defendant could furnish from its warehouse, but without any obligation on plaintiff’s part to take any glass (except such as it might choose from time to time to order), and without the giving of any consideration for defendant’s agreement by way of order accompanying the contract, or otherwise.
Plaintiff’s contention is two-fold: First that by the contract plaintiff was bound to buy whatever glass of the kinds and sizes in question defendant should have in its warehouse; and, second (as we understand it), that if the writing is held a mere offer by defendant, subject to withdrawal before its acceptance, the offer was a continuing one, and a contract was created as to each order'given by plaintiff while the offer was still open and unrevoked by defendant. The court below agreed with plaintiff on the first proposition, and, at least in its practical result, as to the second. It does not appear that any specific order for glass accompanied the contract, nor that there was any consideration for defendant’s promise unless in plaintiff’s obligation to buy.
"We lutvo entered your order * * * tor anything we can furnish from our warehouse, these discounts to apply until June 30, 1910, as follows.”
The entering of the order was prima facie an acceptance of it. Austrian v. Springer, 94 Mich. 343, 347, 54 N. W. 50, 34 Am. St. Rep. 350. Indeed, that such was defendant’s construction of the agreement is suggested by the assertion in its answer that it filled plaintiff’s specific orders for glass sent in after February 21st (alleged to be the actual dale when the contract was executed), “in so far as it had the same in its warehouse iu Cincinnati, Ohio,” and the District Judge, in his opinion denying motion for new trial, said that —
"The defendant regarded the agreement as binding on it and inado deliveries; under it. It repudiated its obligations on the sole ground that when tne plaintiff made demand the warehouse did not contain the sizes called tor.”
Construing the writing as evidencing merely an offer by defendant to sell, and an acceptance by plaintiff of the offer, it is plain that an express contract resulted, so far as not invalid for indefiniteness in respect of quantity. Lima Co. v. National Co., supra, 155 Fed. at page 79, 83 C. C. A. 593, 11 L. R. A. (N. S.) 713; Ellis v. Dodge (C. C. A. 5) 246 Fed. 764, 766, - C. C. A. -; Dailey v. Clark, 128 Mich. 591, 594, 595, 87 N. W. 761. Had the word “whatever” been used in place of “anything,” we think the writing would naturally be construed, even on the theory of a mere offer by defendant accepted hy plaintiff, as binding defendant to1 sell and plaintiff to buy everything defendant should have in its warehouse, during the period named, corresponding to the stated description; and the word “anything” is not infrequently used colloquially in the sense of “whatever.” But, as bearing on the extent of plaintiff’s agreement, there seems to us much significance in the fact that the contract began, not with ail “offer” by defendant to sell, but with an “order” by plaintiff for the purchase of “anything” the former should be able to furnish from its warehouse, thus in terms prima facie indicating an actual order and a complete contract, good as against demurrer, unless plainly appearing to the .contrary on the face of the petition. Defendant’s admission, in writing, of a verbal “order” from plaintiff, “entered” and so accepted by defendant, is not plainly nullified by the fact that plaintiff attached its signature to the writing at defendant’s request. Such signature may well have been desired as a ratification of the verbal order.
This conclusion makes it unnecessary to consider the other ground of defendant’s liability asserted by plaintiff.
The judgment of the District Court is affirmed.