Heisel v. Volkmann

O’Brien, J. : The rule is unquestioned that to establish a contract through the medium of correspondence, there must be sufficient from which a definite agreement can be inferred, and that where the minds of. the parties have not met upon a definite proposition no valid contract is ■created. The formulation of the rule is simple ; but its application to particular facts is at times difficult, owing to the different views which may be taken of the force to be attributed or the construction to be given to the language used in the correspondence. Language, however, which to some extent may be ambiguous or obscure, ■can often be made certain by reference to the intent of the parties, the purpose sought to be effected and the means employed to that ■end. Here, what the defendants wished was to secure at a low price a ■contract for the supply of the chewing gum they would require for the year; and to obtain this, they wrote to the plaintiff asking for prices at which the gum-would be furnished, giving an estimate of their yearly requirements, which, they stated, would not be less than -5,000,000 pieces. It was upon the data thus furnished that the plaintiff made his proposal, fixing the prices accordingly, for 2. yearly contract to supply not less than 5,000,000 pieces. Thi? [610] proposal the defendants accepted, and all, that was-indefinite either as to the terms, of the proposal or the acceptance was whether the yearly requirement would exceed, the minimum amount named— 5,000,000 pieces — and reach the defendants’ expectation that it might be 10,000,000 pieces or over.' In their first letter to the plaintiff'the-intent was clearly expressed that what the defendants sought was a price based upon a yearly contract for a minimum amount, which price was to be considered in connection with the probability that the requirement for the year would be double that amount. That the plaintiff so understood the proposal appears from his letters, and that the defendants acquiesced in this understanding is evidenced, among other things, by two facts which we think are controlling. One is, that they agreed to furnish plaintiff with 5,000,000 wrappers or labels for the minimum amount stated; and the other, that when their attention was specifically called, during the life of the contract, to the fact that plaintiff desired to know “ how much over five million ” pieces- the’^ would require in order that he might, on satisfactory terms, buy the chicle used in manufacturing the gum, the defendants replied that at that time, they were unable to say how much more than 5,000,000-pieces they would need. It would be in the highest degree inequitable and unjust to permit the defendants to obtain the full benefit of the low - prices given them and be relieved of the obligation to take the quantity upon the assurance of accepting which the low prices had been secured. We have a right to assume that the defendants did not intend to-deceive or mislead the plaintiff to his injury ; and yet, if the construction which they now seek to place upon the correspondence is upheld, that result would follow because it is certain that'the plaintiff thought, as he was justified in thinking from the letters and acts of the defendants, that in determining the prices at which he would supply the gum asked for by them and in making shipments, he could rely upon a contract for at least 5,000,000 pieces. This case, we think, is clearly distinguishable from that relied upon by the respondent of Barrow Steamship Co. v. Mexican Central R. Co. (134 N. Y. 15). There the parties negotiated by letter for the transportation by plaintiff of a party of pilgrims from Hew York to Home. In answer to a letter from defendant’s agent, which stated [611] that there would probably be 250 or more in the party, the plaintiff’s agent wrote, “ we beg to confirm the understanding arrived at between us,” which the letter stated, in substance, to be that defendant would ship not less than 250. The letter closed, “ please confirm this and much oblige.” Defendant’s agent replied, accepting the rates offered, and adding: “ There is a probability that the party will exceed 250, but I have not been furnished with information as to the exact number of each class.” The number furnished by defendant Was 134, and it was held that no binding contract for at least 250 had been made. In that case, it will be seen, the defendant never made a direct representation of the number, but stated the probability, and added that the exact number had not been furnished; and, as shown by the correspondence, the defendant was relying upon information derived from an outside source and did not bind itself with respect to any definite number, but was speaking all the time of a probable number. Here, however, the defendants were speaking of the requirements of their own business, of which they must be presumed to have definite information ; and made a representation which was in no way indefinite or ambiguous, as to the minimum amount of chewing gum they would need during the year. And in confirmation of the fact that the contract should be based upon the minimum amount of 5,000,000 pieces, they undertook, on theh- part, to supply wrappers for that number. We think, therefore, that the court erred in dismissing the complaint at the close of the plaintiff’s case upon the ground that the correspondence did not show that there was any definite agreement upon the part of the defendants to take at least 5,000,000 pieces of chewing gum. The other question, as to the measure of damages and the condition of the gum, it is unnecessary for us to consider, for the reason that the error made in dismissing the complaint upon the ground stated requires that there be a new trial. Motion for a new trial accordingly granted, with costs to the plaintiff to abide the event. Yah Brunt, P. J., Bumsey, Patterson and McLaughlin, JJ., concurred. Motion for new trial granted, with costs' to plaintiff to abide event.