Rice v. Western Fuse & Explosives Co.

Mr. Presiding Justice Gary delivered the opinion of the Court. February 2, 1891, these parties, the appellant being described as “ E. S. Bice, Gen’l Agent for E. J. Du Pont de Nemours & Co., * * * party of the second part,” in the body of the paper, and signing it “E. S. Bice, General Agent,” made an agreement in writing, by which the appellee agreed to deliver to the appellant—if the agreement is to be treated as personal with him—fuse in Chicago, “ it being understood that the present prices for such fuse * * * shall be ” so and so. June 12,1893, the appellant telegraphed for two hundred and seventy-five cases of fuse, to which appellee replied the next day that it would ship, but at prices considerable higher than those named in the agreement. The appellant, on the next day, answered, “ Ship at once. Drainage work on. Must have fuse.” The appellee shipped the fuse, and the appellant sent his check for it at the old prices, but refused to pay the residue; hence this suit. The appellant testified somewhat, and desired to testify more, as to his authority to act as agent for Du Pont; but the brief of the appellant does not urge that any error was committed in rejecting testimony. We need not, therefore, consider such a question. It is waived by silence. Cook v. Moulton, 59 Ill. App. 428. The testimony he did give is not enough to show that he had authority to make for Du Pont such agreement. It therefore binds him personally. Wheeler v. Read, 36 Ill. 81. Apt words are in it to charge him, in which respect it is unlike Neufield v. Beidler, 37 Ill. App. 34, and other cases cited by the appellant in which it has been held that the person signing was not personally bound. His second point is that the higher price can not be recovered. He ordered at that price. The prices named in the agreement were only present prices, with no implication even that they would continue. There was no duress even under the extreme doctrine of Pemberton v. Williams, 87 Ill. 15. There it was the one and only deed that the plaintiff must have. Here the world was open for the appellant to search for fuse. The bargain he made, by ordering the fuse after being informed of the price, he must abide by. Cases, that offers by correspondence can not be retracted, if accepted promptly before notice of retraction, have no resemblance to this. These are the only points argued, and the judgment is affirmed.