Allen v. Nothern

Hart, J., (after stating the facts). Dan Daniels was inspector of hay for the Little Rock market, and, over the objection of the defendant, was permitted to testify that, in Little Rock, “very choice hay” means strictly choice hay; that in alfalfa hay if would mean that the hay must all be extra good quality in color and in texture and without a mixture of other grasses and must have a fine stem, and that “good quality” would be about No. 1. He was asked the question, “What would ‘good quality’ mean?” and answered, “Well, .that would be about a No. 1,1 should judge. No. 1 alfalfa would be coarser stem, a dull green in color, but must toe sound and pure, not mixed with other grasses.” The court erred in admitting this testimony. Allen’s letter of the 9th of January, 1912, .stated that he had just received a telegram from his manager at the ranch in Nebraska, stating that he had a. certain number of tons of the first and second cutting, good quality, and of the third cutting containing a little grass, good quality. It will be noted that Allen in his letter is quoting from the telegram from his manager. The telegram and the letter show that the words “good quality” are not used in the sense that grade No. 1 is used in the Little Rock market. Daniels testified that alfalfa hay to grade No. 1 must toe unmixed with other grasses. The ranch manager in his telegram referred to the third cutting as containing a little grass and still .spoke of it as hay of good quality. So far as the record .discloses, the ranch manager had never toeen to Little Rook and knew nothing whatever atoout the inspection .and grading of hay there. (1) The response of Nothern to this letter shows that he did not understand “good quality” to mean grade No. 1, for he is particular to tell Allen to instruct his manager not to ship .any hay that will not grade No. 1. Therefore it was the duty of the court to construe the contract and declare its terms and meaning to the jury. Mann v. Urquhart, 89 Ark. 239. We do not think the words were used in .any sense other than the ordinary meaning of “good quality” and on that account oral testimony was not (admissible to explain the meaning of the words used as was the case in Paepcke-Leicht Lumber Co. v. Talley, 106 Ark. 400. (2) The law relating to oases of this kind is well stated in Cage v. Black, 97 Ark. 613. In that case the court said: “In order to constitute a binding contract of sale, there must toe a mutual assent of tooth parties to the essential terms of the agreement. Mere negotiations between the parties .as to the subject-matter or terms of the sale will not toe sufficient to make a binding contract. A binding contract of sale may toe entered into toy letters .and .telegrams, and so an acceptance by letter or telegram of an nneonditional offer made in the same manner will •constitute an obligatory contract. Emerson v. Stevens Grocer Co., 95 Ark. 421. The offer of one represents ’the agreement on his part, and the acceptance of the other represents Ms agreement; but, before the contract is consummated, each party must agree to the same' proposition, and the .agreement of both must be mutual to every essential term of the contract. There is no obligation until an offer expressing the terms of the sale has been made and also an acceptance thereof in accordance with ■such terms.” To the same effect see Porter v. Gossell, 112 Ark. 380. In the application of the rule it is evident that the letters did not constitute a binding contract between the parties. The letter of January 9, 1912, written by Allen to Nothern, contained a proposal to Nothern to sell him his entire stock of hay upon terms and conditions therein stated .and set out.. This letter called for an acceptance on the part of the plaintiff of the terms and conditions therein stated. The letter of January 11, 1912, written by the plaintiff, ¡did not contain .an unqualified acceptance of the offer of Allen. It contained other terms and conditions than those imposed toy Allen in his letter to him. For instance, Allen’s letter contained the stipulation that the hay should be moved before the first of March. The letter of Nothern did not accept this condition. He stated that he thought he could comply with that condition but asked for more time. So, in this respect there was no unconditional acceptance of the terms imposed by Allen. Again, as we have .already indicated, Allen proposed to sell Nothern alfalfa hay designated toy Ms ranch foreman as hay of “good quality” and .some of it was described as having a little grass in it. Nothern did not accept this proposal, but, to the contrary, told Allen to be careful to see that his ranch foreman did not ship out ■any hay that would not grade No. 1 and better. So it will be seen that up to tMs time the correspondence amounts to no more than proposals by the one and oounter proposals toy the other. Allen ,says that he was a traveling man and did not receive the letter of January 11, 1912, until about the 27th -or 28th of the month after his return to Little Bock. He stated that he at once called Nothern over the telephone and told him that the letter was different from the proposals he had made him and that he would not accept the contract proposed by Nothern. Nothern denied that Allen called him over the telephone or rejected the terms of his proposal. It can not be said that Allen, as a matter of law, accepted .'the terms of the proposals by permitting the hay to be shipped to Nothern. The record shows- that the ranch foreman -shipped some ¡hay to Nothern in December, 1911; that early in January Nothern wrote to him about further shipments of hay, and so far as the record discloses these shipments were made by the foreman pursuant to the letters written him by Nothern from time to time and not in pursuance of any contract made between Nothern and Allen. According to the testimony of Allen the record does not show that he knew that Ms foreman was shipping out hay under the alleged contract between him and Nothern. On the other hand, Nothern introduced testimony tending to -show that the hay was shipped out pursuant to the terms of Nothern’s letter of January 11. We do not deem it necessary to set out the instructions of the court. The jury were permitted to find that the letters between the parties constituted a valid and binding contract. This was error. F-or the reasons already .stated, the letters in themselves did not constitute a binding contract between the parties. There was a disputed question of fact as to whether Allen accepted the new terms imposed by Nothern in Ms letter of January 11, 1912, by not objecting to them, and by allowing hay to be shipped, or whether he objected to them as soon as he received the letter as testified to by himself. For the errors indicated in the opinion the judgment must be reversed and the cause remanded for a new trial.