124 Me. 149 | Me. | 1924
By written agreement dated September 18, 1916, the plaintiff agreed “to sell to the American Realty Company and to deliver to the boom of the International Paper Company, Solon Mill, in the summer or fall of 1917, a quantity of 4' rough Spruce and 4' Fir pulpwood, containing not less than 75% Spruce. The amount to be ten thousand cords, more or less at the option of said Blaine S. Viles.”
This contract was made and signed in behalf of the defendant by one E. E. Amey, whose name appears in the correspondence and upon the stationery of the company with the title of Assistant to the President. The plaintiff delivered under this contract 9,101.35 cords of wood and was paid therefor at the contract price of eight dollars per cord. He claims and the jury has found in answer to a
This action is in assumpsit to recover that fifty cents per cord, and is before the Law Court upon report, upon the writ, pleadings, evidence and finding by the jury for such final judgment “as the legal rights of the parties require.”
Before approaching the decision of the case upon the issue which seems to us controlling, it is profitable, if not absolutely necessary, to interpret the written contract between the parties.
Counsel for the plaintiff contends that “the written contract did not obligate Viles to deliver 10000 cords more or less,” and was not so intended; that the words “10000 cords” indicate “what the parties had in mind as the amount which conditions would probably warrant delivering. But it obligated no one.”
We cannot so construe the contract; such construction is not in harmony with the situation and defined policy of the defendant, nor with the correspondence between the parties. The defendant corporation is a subsidiary of the International Paper Company, maintained by the latter company as a part of its organization for securing an adequate and constant supply of wood for its mills. In the Fall of 1916 its agents were making contracts for its necessary supply of wood for the coming year. It was vital to the successful operation of the mills of the International Paper Company that an adequate and dependable supply of wood should be secured. Under such circumstances it cannot be considered, unless all other constructions fail, that the executives of the defendant would make a detailed written contract, with specifications as to delivery, and scaling and quality, with the intention of not binding either party, of simply affording a market for whatever amount of wood Mr. Viles might see fit to turn into Solon Boom. The executives of large industrial organizations do not conduct business in that way.
In reply to the plaintiff's letter of December 28, 1916, in which he first suggested that the contract left the amount at his option, Amey replied under date of January 2, 1917, expressing surprise at the tenor of the letter, and concluding: “We should not want any wood at more than $8.00 per cord delivered Solon, and we should like to hear
‘ 'From the Buxton Tract and other lots in Eustis, about 6000 cords.
“From Bog Brook Tract and other lots in Dead River Pit. about 2,500 cords.”
The above was only 500 cords less than the minimum amount named in the oral agreement. The record shows quite conclusively that the agreement for the additional fifty cents a cord, which the jury has found, was made not earlier than February 7, 1917, and that it was not an independent contract, but a modification as to price of the existing contract, a concession on account of existing conditions of an additional fifty cents per cord, for the delivery of substantially
In the view which we take of this case we need not decide whether the authority of Amey to make the oral agreement is proved, or whether the defendant corporation had clothed Amey with apparent authority to make it; nor need we decide whether consideration for the oral agreement is shown. See Savage v. No. Anson Mfg. Co., 124 Maine, 1, 8.
Amey was discharged by the American Realty Company in July, 1917, and had died before the trial of this case. The alleged oral agreement to pay the additional fifty cents per cord was first called to the attention of George M. Stearns, then President of the defendant company, by the plaintiff, early in August, 1917. This is the first knowledge of the oral agreement attributed to any official of the defendant, except Amey. Mr. Stearns promptly denied any authority on Amey’s part to make the modification of the written contract, and positively refused to pay the additional fifty cents. They had a second interview placed by Viles as after October 12, in which the denial of liability was repeated; at this latter conversation, according to Mr. Viles, Mr. Stearns said that he would take the matter up with the directors. All later interviews have been between counsel.
The defendant has pleaded by brief statement that the demand in suit was settled by the plaintiff by receipt of $9,541.22 from the defendant, which was received by plaintiff in accord and satisfaction of said demand, under R. S., Chap. 87, Sec. 63.
The court is of the opinion that this defense is sustained by the record before us. The rule of law is familiar and has been so recently stated by this court that an extended restatement here is not necessary. Fuller v. Smith, 107 Maine, 161, 165; Chapin v. Little Blue School, 110 Maine, 415, 420; Bell v. Doyle, 119 Maine, 383. Briefly, ‘‘it must be shown that the debtor tendered the amount in satisfaction of the particular demand, and that it was accepted by the creditor as such.” Fuller v. Smith, supra. “If an offer of money is made to one, upon certain terms and conditions, and the party to whom it is offered takes the money, though without words of assent, the acceptance is an assent de facto and he is bound by it. The acceptance of the money involves the acceptance of the condition. Under such circumstances, the assent of the creditor to the terms proposed by the debtor will be implied.” Anderson v. Standard Granite Co.,
At the time of the interview in August between plaintiff and Mr. Stearns, the wood had been delivered. That interview could have left no doubt in the mind of Mr. Viles as to Mr. Stearns’ attitude about the agreement for the additional fifty cents per cord. He positively and unequivocally denied liability of the defendant therefor, and refused to pay it. There is no contention that the attitude of Mr. Stearns or of the company changed. On October 12, 1917, the American Realty Company issued its voucher check to the plaintiff for $9,541.22; on the back of this check the following words appear:
“This check is in full settlement of the items shown below, if not correct please return.”
“Per statement attached,................................$9541.22”
“Endorsements below”
“For deposit only to credit of Blaine S. Viles.”
The following statement accompanied this check:
“AMERICAN REALTY COMPANY,
Portland, Maine,......................................
To Blaine S. Viles, Dr.
Augusta, Me.
Cont. 523. Kennebec.
9101.35 cds. R @ 8.00 72810.80
Less Clc. Jan. 26 2931.84
Scaling 29.00
“ Ck Feb. 14 4673.32
“ “ “ 27 .7194.00
“ “ Mar. 15 5000.00
“ “ Apr. 10 11457.52
“ “ May 2 22486.68
“ “ July 3 9497.22 63269.58
9541.22
Bal. due Del. at Solon Boom (Final Payment on Cont. 523)”
The proof in the instant case measures up to the standard of being “clear and convincing that the creditor did understand the condition on which the tender was made, or that the circumstances under which it was made were such that he was bound to understand it.” Fuller v. Smith, 107 Maine, 161, 166-7.
Judgment for the defendant.