140 P. 761 | Utah | 1914
The plaintiff sued to recover a money judgment on a blanket charge “for goods, wares and merchandise sold and delivered,” of which it alleged a balance of $561.72 remained due and unpaid. The defendant denied the indebtedness,
In brief, the case is this:
In April, 1906, the defendant, residing in Salt Lake City, wrote the plaintiff, residing in Lafayette, Ind., where it was v engaged in manufacturing and selling safes, that one of its agents had conferred with him and was anxious to interest him 'in the safe business. He stated that, if he went into the business, “it would be with a view of putting a few iirst-class agents in the field and pushing the business, and, .as traveling expenses are high in the west” requested “the very best prices for 'spot cash” and further requested cata-logues and price lists quoting “your very best prices on the various kinds of safes.” The plaintiff replied: “If you are inclined to handle our line of safes making us some good sales, we have no objection in furnishing catalogues and •price lists quoting you our 'spot cash’ with order prices.” A price list was inclosed, and catalogues sent showing some twenty different grades of sales and price lists of each. Further correspondence followed, in pursuance of which the defendant appointed agents and sent them out to solicit orders. Contracts of sale were made between the defendant and the purchasers. The orders were sent to the plaintiff, ■who acknowledged receipt of them, and made shipments direct to the purchasers, but charged the safes to the defendant.
In May, 1906, after several orders had been received and -•acknowledged by the plaintiff, and some delay in shipments •experienced, the defendant wrote the plaintiff:
To this the plaintiff replied:
“We can make prom.pt shipments, but you must understand that safes must be lettered and varnished, which will consume a few days, especially as the varnish must be thoroughly dried before shipping in order to avoid the packing from adhering to the safes. "We sometimes are short in some sizes, and consequently your orders are delayed for this reason, but we aim to carry all sizes in stock and make prompt shipments. We assure you that m-other safe manufacturers can mahe prompter shipments than we do, and you will be convinced that our dealings with you are receiving our best attention, when we have proceeded any great extent with you in a business way.”
The defendant continued to take orders, sending them to the plaintiff, who acknowledged receipt of them, and made shipments accordingly.
In September, 1906, the defendant wrote the plaintiff that he had been in the business long enough to satisfy him
To this the plaintiff replied:
“If you continue to send us your business, we have been receiving in the past, we do not see why you should not go' ahead and continue to build up your business, as we surely will give you all the. protection possible. We have several hardware dealers representing us in one or two of the states you named, but we do not believe they would interfere with your business in the least. We have had several inquiries from your city, but as long as you can handle our goods and give satisfaction we do not see why any change should take place. Your orders are being shipped out as quickly as ' possible, our factory being very much congested- with orders at this season of the year, to say nothing about our being ■unable to get some material from the eastern markets, which
Thus the defendant in the territory named continued with his agents in the field selling safes, and sending in the orders to the plaintiff to be filled.
In December, 1906, the plaintiff wrote the defendant that one from Montana wrote it “for a price on our safes, and we referred him to you as our representative in that territory, and we would suggest, that you write him, and, if he-wishes to sell safes as a dealer, would suggest that you quote him as low a price as possible so he can realize a profit.”
It was further testified to by the defendant that he had about eight agents traveling and selling safes in Utah and in the other named states, and that he sold about 200 safes, which had been shipped to the purchasers by the plaintiff-on sales made by him and upon his orders sent to it.
After the defendant had been engaged in the business for something over a year, a controversy arose between him and the plaintiff as to the plaintiff’s delay in making shipments-of safes sold by him and orders sent to it, especially with respect to the grade or kind of safe known as number eighty, In some instances there were delays of more than five-months. Purchasers complained of the delay, and in some instances their orders were canceled. Considerable correspondence passed between the plaintiff and the defendant with respect to this.
In May, 1901, the defendant wrote the plaintiff:
“When we wrote for information as to when the shipments would be made we were in -hopes of getting some definite information regarding the matter, but must confess that we are about as much in the dark as we were before the inquiry, was made, for we don’t know whether it takes a year to make patterns or whether a month, week, or a day, we really hope, however, that it don’t require much time to make them, for we have recently sent you several orders for
The plaintiff replied:
“It takes more time to get out new patterns than you have any idea; especially when you are about five hundred orders behind all the time. We will endeavor to fill your orders on number eighty safe as quickly as possible, but we will have to build them entirely by hand.”
Later in that month the plaintiff wrote the defendant: “We would ask you to refrain from taking orders for number eighty safes as much as possible, as we are not in a position to furnish them, only on long time delivery.” But within a few days after that the plaintiff in acknowledging receipts of orders for number eighty safes, stated: “We will endeavor to fill your orders for number eighty safes as quickly as possible.” Still later in that month, referring to further orders sent it by the defendant, the plaintiff wrote him: “It is a question of just when we can fill your order for a number eighty safe, but we would advise that you hold off your customer as long as possible, and if we can make ■shipment all right and well. We dislike very much to cancel this order, and will do the best we can towards making .shipment.” But in June , following, again acknowledging receipt of three orders for number eighty safes, the plaintiff wrote the defendant that the orders “have been entered for prompt attention, shipments moving at earliest date possible.”
Tbe defendant sold ten number eighty safes, one 110, and one 160, orders for wbicb bad been sent to tbe plaintiff and acknowledged by it, but of wbicb shipments were not made- or delayed, and tbe orders canceled. Because of tbe plaintiff’s failure and delay in making shipments, tbe defendant, in tbe summer of 1908, ceased to do business with it. He-then owed tbe plaintiff a balance unpaid on safes which bad been sold and delivered amounting to $561.62. Tbe subject-matter of bis counterclaims relates to bis loss of profits as fo-sales made by him of tbe twelve safes referred to and wbicb tbe plaintiff failed to deliver.
Tbe court considered tbe transactions and tbe rights of tbe defendant from tbe viewpoint of whether tbe orders sent tbe plaintiff and received by it with respect to tbe safes sold by tbe defendant, and not delivered by tbe plaintiff, constituted, as between tbem, contracts of sale. Tbe court held they did not, because of an insufficient acceptance of the-orders by tbe plaintiff; tbat its acceptances — your orders received; have been entered; will receive prompt attention; shipments will be made as soon as possible — were not sufficiently specific and direct to constitute in law an unqualified acceptance. We think tbe court erred in tbat.
The judgment is reversed, and the cause remanded for a new trial; costs to the appellant.