Tri-State Milling Co. v. Breisch

Grant, J. (after stating the facts). 1. It is insisted by the plaintiff that a valid and binding contract was made, while defendants contend that none was made, because no terms of payment were assented to. Plaintiff gave evidence showing that when flour is sold by sample the usual terms are sight draft with bill of lading attached, to be paid when goods arrived, and are found equal to the sample. Defendants admitted that they had heard of such custom, but that they had never done business that way. The court, however, eliminated the question of custom from the case. The secret understanding of parties to a contract cannot control its terms. Is it clear from the correspondence that the minds of the parties met on the essential features of a contract for the sale and delivery of the flour ? The offer in defendants’ letter of September 18th to sell at “$3.30 per barrel f. o. b. Lansing;” the telegram of plaintiff on the 21st, offering “ three twenty bulk Lansing two cars like sample,” and the defendants’ reply telegram “ Accept offer three twenty bulk two cars,” were evidently understood by the parties as making a contract. Defendants on the same day wrote plaintiff that they had accepted the offer “ on usual terms, bill of lading attached to the sight draft.” In the absence of any custom or agreement, the offer contained in the letter of September 18th would mean cash on delivery on board cars at Lansing. On the 22d, before plaintiff had received the letter of the 21st, it wrote defendants, stating that it had expressed the sacks to be used for shipment, that all charges would be prepaid, and wrote “ Instruct all drafts through the Fourth National Bank [239] of Nashville, and they will be paid promptly on arrival of .goods.” To this defendants replied on the 24th, saying "that they were clear on everything contained in that letter with the exception of the 100 19-lb. sacks. That letter is a clear acceptance as to the terms of payment, and closed the contract. Meanwhile, a second order for another carload had been made by the plaintiff and accepted by the defendants on the same terms as the former order. On the 28th defendants again wrote plaintiff, asking for further time on the last two cars, in which they refer to the flour as sold on the date of the 25th, and stating further that the sacks had not arrived. On the same day, but ■evidently after the letter above referred to was written, the sacks came and were delivered to defendants with •charges thereon of $17.93. They refused to accept the sacks and advance the charges, and wrote plaintiff that it had better turn the sacks over to other parties as they did not care to accept the sacks, and sew the 16ths, or to ship their flour payable on arrival, and canceled the order for four cars. It was the duty of the plaintiff to furnish the sacks. It had done so, but through no fault on its part the express company presented a bill to defendants for the .amount of the expressage, which the plaintiff had paid. Defendants were under no obligation to pay. Plaintiff promptly did all in its power to correct the mistake by requesting the express company at Nashville to telegraph the agent at Lansing to deliver the sacks immediately without charge. Whether this was done we can only infer. On the following day defendants telegraphed plaintiff: “ Will accept sacks and ship flour as fast as possible; "terms sight draft with bill of lading. Wire if you accept these terms.” It seems evident from this that there would have been no difficulty in delivering the sacks if defendants had chosen to keep their contract. 2. Counsel for defendants urge that there was no proof •of delivery or tender of the sacks to the defendants by the [240] plaintiff free of charge; and notwithstanding the cancellation of the contract by the letter of September 28th, it was still the duty of the plaintiff, if it insisted upon the performance of the contract, to tender the sacks. The objection made by the defendants on September 30th to the delivery of the sacks was withdrawn the very next day when they wired plaintiff: “Will accept sacks and ship flour as fast as possible; terms sight draft with bill of lading. Wire if you accept these terms.” This clearly indicated that defendants were satisfied with the tender of the sacks (perhaps the express company had in conformity with plaintiff’s request withdrawn its demand that defendants pay the shipping charges). From this time there was no other obligation upon plaintiff respectihg these sacks than to leave them where they were in the express office at Lansing, so that, defendants could use them if they chose to perform their contract. As there was no evidence that these sacks were moved, it is to be presumed that this obligation was performed. 3. It is. conceded that the court below correctly instructed the jury that the difference between the contract price and the market price of the goods at the time and place of delivery was the measure of damages. It is, however, claimed that there was no evidence of market price of flour at Lansing. There was evidence tending to show that Detroit was the nearest controlling market. Mr. Thoman, a miller in Lansing, testified that the Detroit markets controlled the Lansing wheat market, and that the price of wheat indirectly controlled the price of flour. The quotations of the market price of flour in the city of Detroit, as reported in the Detroit Free Press, a daily newspaper published in that city, were introduced in evidence. This testimony was admissible. Sisson v. Railroad Co., 14 Mich. 489; Aulls v. Young, 98 Mich. 234. Plaintiff also gave testimony showing that the average price of the grade of flour contracted for in Michigan at the time was not under |3.45 per barrel. [241] We cannot agree with counsel that there was no evidence in the case upon which the jury might find the market value of flour in the city of Lansing. The judgment is affirmed. Carpenter, C. J., and McAlyay, Blair, and Moore, JJ., concurred.