105 Neb. 361 | Neb. | 1920
Reynolds & Maginn, a firm of contractors, plaintiffs in the court below and appellees here, recovered a judgment against the appellant, Omaha General Iron Works, for damages for alleged breach of contract in failing to furnish the structural steel and iron required in the erection of a school building at Beemer, Nebraska, which the appellees were under contract to erect. Both parties moved for a directed verdict at the close of the evidence, the jury were discharged, and judgment was rendered by the court.
The action was predicated upon a letter received by the appellees from the appellant and the alleged oral acceptance of the offer therein contained. The letter follows:
“Omaha, Neb., Feb’y 9, 1917.
“Reynolds & Maginn, General Contractors,
3013 Ames Avenue, Omaha, Nebraska.
“Gentlemen: We propose to furnish the structural steel and miscellaneous iron for the erection of the high and grade school at Beemer, Nebr., in accordance with the plans and specifications prepared by Architect W. F. Gernandt, delivered f. o. b. cars Beemer, for the sum of nineteen hundred dollars ($1,900.00).
“In the above price we have included all door and window lintels, steel columns, and I-beams, ring and covers, joist anchors and hangers, clean-out door, cast-iron window sill, reinforcing bars for concrete stairs, door-frame anchors, one flag pole, one ashpit door. We trust these figures may be of some service to you and that if you are the successful bidders we may be favored with the order.
“OMAHA GENERAL IRON WORKS, “D. B. Van Every.”
The appellees made no written response to this letter, but on February 27,1917, after having secured the contract for the schoolhouse, their representative called the appel
Deferring, for the moment, the question whether or not there was a sufficient acceptance of the alleged offer, as contained in the letter, our first inquiry must be whether the letter of February 9 constituted such an offer or proposal as could be turned into a contract by acceptance. Nebraska Seed Co. v. Harsh, 98 Neb. 89, holds, in substance, that a letter intended only as a preliminary negotiation, an invitation to the person addressed or to the public generally, or to those engaged in a particular line of business, to make an offer or to trade, or a letter in the nature of an advertisement or circular addressed generally to those engaged in a particular line of business stating the price at which property is held, could not be converted into a contract by acceptance. The language of the letter in question in that case consisted of a statement that the writer had about 1,800 bushels of millet seed and wanted a certain price therefor. It was held not to be a final proposition, but a mere request for bids, because it did not contain a distinct offer to sell.
'The letter involved in the instant case, hoAvever, was in the form of a definite proposal to furnish the materia] required in the erection of a certain building, in accordance with certain plans and specifications and for a total sum. It was in the nature of a bid for the entire amount
In Peirce v. Cornell, 117 App. Div. 66, 102 N. Y. Supp. 102, a case quite analogous to the instant case, it is said: “The test is whether or not the proposition by one party and its acceptance by the other shows that the minds of the parties met as to the terms of the contract, leaving-no essential term to future agreement.” We are of the opinion that the letter in question satisfies that test, and that, if there was a valid acceptance of the proposal therein contained, an enforceable contract resulted. Campfield v. Sauer, 91 C. C. A. 304, 164 Fed, 833,
That an oral acceptance of a written offer to sell goods is sufficient to satisfy the statute of frauds, if the person making the offer is the party to be charged and the written offer contains all the essential terms of the proposed contract, is supported by the weight of authority. Willis v. Ellis, 98 Miss. 197, Ann. Cas. 1913A, 1039, and note; Carter v. Western Tie & Timber Co., 184 Mo. App. 523; Kohn & Baer v. Ariowitsch Co., 168 N. Y. Rupp. 909, 181 App. Div. 415; Smith v. Gibson, 25 Neb. 511. The appellant, however, contends that the letter of February 9 was not a sufficient memorandum under the provisions of section 2631, Rev. Rt. 1913. The appellees claim that, since the contract relates to iron and steel to be manufactured according to plans and specifications, it deals, not with goods in existence at the time, but with work and labor to be bestowed in their manufacture, and that the contract does not come within the purview of the statute of frauds. That question need not be discussed here, for if it be assumed that the contract involved in the instant case is one within the statute of frauds, the letter, in our opinion, constitutes a sufficient memorandum. This court has uniformly held that our statute of frauds does not require all the terms of the contract to be stated in the written memorandum, but that details may be supplied by parol evidence. Rusicka v. Hotovy, 72 Neb. 589; Mc
In proof of its contention that the letter of February 9 was intended to be only part of the preliminary negotiation, to be consummated later by the execution of a formal contract, and not to be binding until such formal contract was entered into, the appellant offered to show that like preliminary proposals to furnish materials had often before been submitted by it to the appellees, and that it had been their custom always in such cases to enter into a separate formal contract. The form of contract used on such previous occasions was also offered in evidence. The refusal by the court to admit the offered evidence is assigned as error. In view of our conclusion that .the letter expressed all the terms essential to a complete contract and became .so when accepted, it was, in our opinion, immaterial that the parties may have contemplated reducing it to a more formal writing. 13 C. J. 290, 291; United States v. Carlin Construction Co., 138 C. C. A. 449, 224 Fed. 859; Singer v. Disston & Sons, 178 App. Div. 108, 165 N. Y. Supp. 94. “The law undoubtedly is that an informal agreement complete in its terms will take effect if the parties so intend, though a more formal contract is expected to be afterwards made, provided tfiat the formal contract is not to contain material provisions not contained in or to be inferred from the preliminary informal agreement.” Garrick Theatre Co. v. Gimbel Bros., 158 Wis. 649.
No reply was filed to the appellant’s answer, and it is argued that the new matter set up therein must therefore be taken as true, and that the appellant was, for that reason, entitled to-judgment. Evidence was tendered by
No error appearing in the record, we recommend that the judgment be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed, and this opinion is adopted by and made the opinion of the court.
Affirmed.