N. Jacobi Hardware Co. v. Vietor

PARKER, Circuit Judge (after stating the facts as above). We think that the learned District Judge was clearly right in directing a .verdict for plaintiffs, both as respects the question of liability of defendant and the amount of damages. As to the first question, defendant had requested an offer from plaintiffs. ■ Plaintiffs, in response to this request, had quoted prices subject to acceptance by the mills. Defendant unconditionally accepted the offer contained in this quotation, giving plaintiffs a definite order for a certain amount of rope at a definite price, specifying freight allowance and time of shipment. This completed the contract, subject to the condition that it be accepted by the mills. It was accepted by the mills, and plaintiffs wrote, notifying defendant of the acceptance, prior to their receipt of the letter. in which defendant stated that its understanding was that the prices were guaranteed, an understanding directly in conflict with the express terms of the letter of quotation. This correspondence completed the contract between the parties, without regard to the signing and return of the formal written contract. Bell v. Lamborn (C. C. A. 4th Ct.) 2 F.(2d) 205; Billings v. Wilby, 96 S. E. 50, 175 N. C. 571; Wilkins v. Cotton Mills, 97 S. E. 151, 176 N. C. 72; Savannah Sugar Refining Corporation v. Sanders, 129 S. E. 607, 190 N. C. 203. The faet that the defendant, when returning the signed formal contract, referred in its letter to an understanding on its part as to price guaranty not contained in the order as signed; and at variance with the terms of the contract as established by correspondence, cannot avail the defendant. This was not an attempt to specify different terms in the acceptance of an offer, which would amount to a rejection of the offer and a counter proposition. The offer had already been unconditionally accepted, and the terms of the contract had become fixed. It amounted at the most to a proposed alteration of the contract, made after unconditional acceptance, which could not affect the contract, in the absence of assent by the other party. Wilkins v. Cotton Mills, supra; 6 R. C. L. 605; Turner v. McCormick, 49 S. E. 28, 56 W. Va. 161, 67 L. R. A. 853, 107 Am. St. Rep. 904. As said by Justice Stacy in Rucker v. Sanders, 109 S. E. 857, 182 N. C. 607: “In order for this subsequently intended direction or suggestion to invalidate the acceptance, it should amount to a qualification or condition imposed as a part of the acceptance itself.” The statement in the letter as to price guaranty could not operate as a rejection of the offer, because the offer had already been accepted, and for the further reason that it did not purport to be a condition of acceptance. It could not operate to add an additional term to the contract, because plain [33] tiffs promptly replied, refusing to guarantee the price. But, even if the language of defendant’s letter could be construed as imposing a price guaranty as a condition of acceptance, the defendant waived this condition by signing and sending in the pink copy of the formal order, after it had been notified that plaintiffs would not guarantee the price. The subsequent correspondence of the parties with regard to the contract shows dearly that they both thoroughly understood that there was a completed contract, and that there had been no guaranty as to price. As to the amount of damages, it was clear from all the evidence in the ease what plaintiffs were entitled to recover, there being no dispute as to any element to be considered. The contract price was admittedly 52% cents per pound. The evidence showed without contradiction that the market price was 22% cents per pound on April 1, 1921, the last day fixed for acceptance of delivery by the defendant. The jury were instructed to fix the damages at an amount which represented the difference between the admitted contract price and this undisputed market price, calculated on the quantity of rope covered by the contract. This was the correct measure of damages. Lumber Co. v. Mfg. Co., 78 S. E. 284, 162 N. C. 395; Duluth Furnace Co. v. Iron Belt Mining Co; (C. C. A. 8th Ct.) 117 F. 138, 55 C. C. A. 154, 35 Cyc. 592, and cases cited; 24 R. C. L. 116. Where the plaintiffs were clearly entitled to recover, and no matter affecting their claim was left in doubt, the court properly directed a verdict in their favor. North Penn. R. R. v. Commercial Bank, 8 S. Ct. 266, 123 U. S. 727, 31 L. Ed. 287; Angelo v. Lamborn (C. C. A. 4th Ct.) 2 F.(2d) 854. Defendant contends that there was error in the instruction as to damages, because there was some evidence that rope sold- as high as 25 and 80 cents per pound between April 1, 1921, and the time of the resale of the rope by plaintiff on June 14,1922. This contention of defendant arises from a misconception of plaintiffs’ action, which is an action for damages for breach of contract, and not an action to recover the difference between the contract price and the price obtained on resale. In the ease of a buyer’s breach of a contract for the sale and purchase of goods the seller has an election of three remedies: (1) To treat the property as his own and sue for damages; (2) as the property of the buyer and sue for the price; (3) as the property of the buyer, and to resell it for him, and sue for the difference between the contract price and that obtained on resale. Heiser v. Mears, 27 S. E. 117,120 N. C. 443; 24 R. C. L. 86. In the ease at bar the sellers elected to pursue the first of the remedies mentioned, and all questions as to what price they obtained, or might have obtained upon a resale of the property, are foreign to the issue in controversy which, as stated above, was the difference between the contract price and the market price at the time fixed for delivery. As the facts as to this were established beyond controversy, a verdict was properly directed. Affirmed.