Shores Lumber Co. v. Patterson

| Wis. | Mar 1, 1898

Lead Opinion

PiNNEY, J.

We think that, when applied to the situation of the parties and the subject matter with which they were dealing, it is quite plain that the time for complete accept•ance of the terms of the proposition, made by the plaintiff to the defendant, related, not merely to the comparatively inconsequential matter of securing two days’ time for the •defendant to determine 'whether he 'would make payment for the lumber in ninety days’ paper at six per cent., or cash, when in fact he would not be under any obligation to make payment until delivery of the lumber, which would presumably afford him a reasonable time to determine that matter. It is evident, we think, judging from the data before us, that the reservation of a right to accept the offer within two days was with a view to make necessary examination or investigation in regard to matters much more material and important, such as securing an examination or inspection of the character and quality of the lamber, the subject of the proposed sale. The question of the quantity the defendant would purchase, the place where he would accept the delivery of it, and the price he would pay, in view of the state of the market, were all matters he could decide intelligently as soon as the written proposition was handed to him, as he in fact did. It was otherwise with respect to the character and quality of the lumber. It is well understood that purchases of lumber are conducted by brokers and agents who are usually at points where large quantities are bought and sold, and so are able to make prompt inspection of lots offered, and to report the character and quality promptly by telegram, so that intending purchasers may act understandingly and have a proper basis upon which to form a practical judgment. The delay in this case, it is clear, was not secured to enable the defendant to determine whether he would pay cash on delivery, or in ninety •days’ paper at six per cent. We are clearly of the opinion that there was no completed contract between the parties, and, as it was not shown that the defendant ever accepted or agreed to accept the lumber the plaintiff proposed to sell him, he had, therefore, a right to withdraw from the negotiations as he did by his telegram. The construction placed by the court upon the proposition and acceptance relied on was, we think, erroneous. The court, as requested at the trial, should have directed a verdict for the defendant.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.

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Concurrence Opinion

MaRShall, J.

I cannot concur with the conclusion arrived at in this case. To my mind the meaning of the written acceptance is plain and unmistakable. There was a written proposition to sell appellant a quantity of lumber, located on Ashland dock, at $10 per thousand on such dock, or delivered on the Tonawanda dock at $12 per thousand, in the latter case freight charges to be paid cash on delivery, terms ninety days, with permission to the purchaser of six per cent, per annum for one third cash, and to accept by wire to the seller at Tonawanda by Thursday after the date of the proposition. Such date was Tuesday, September 18, 1894. Appellant immediately wrote on the proposition and delivered the same to the respondent: “T accept the above, price as quoted on Ashland dock. Will wire acceptance on balance contract 20th.” The punctuation is my own; there is none in the original. Now, to say that such acceptance referred only to the price on Ashland dock, and not to the proposal to sell generally, is to give it no significance whatever, and to convict persons, apparently experienced business men, of dealing in a manner not consistent with the way such persons would ordinarily be expected to deal. It must occur to a person reasonably trained in business operations that a mere acceptance of the price, leaving all other questions open, was not of sufficient importance to have been even thought of. Certainly, neither buyer nor seller would have deemed that of sufficient importance to have called for the formal indorsement in 'writing on the proposition. To my mind, the purpose clearly was to accept the proposition as made, reserving the right to say, within two days, whether the seller would be allowed two dollars per thousand to deliver the lumber on the Tonawanda dock. As the determination of that question required reasonable time to investigate as to current carrying charges by lake transportation, two days were reserved for that purpose. That construction gives reasonable significance to the acceptance. Lake freights are constantly changing, so it was most natural that a careful business man, before agreeing to pay two dollars per thousand for freight charges from Ashland dock to Tonawanda dock-, would take a little timé to investigate the subject of what others were charging for like service. With that in view, the purchaser wrote, “I accept the above, price as quoted on Ashland dock. Will wire acceptance on balance contract 20th.” That is, by inference, very clearly, I will say by the 20th whether I will pay the additional two dollars for delivery on Tonawanda dock. If the language had been that, or, I will say by the 20th whether to deliver on Tonawanda dock, it would not have been more plain in my judgment. That is the view the trial court took of the contract. I think the judgment should be affirmed.