Pioneer Box Co. v. Price Veneer & Lumber Co.

Cook, J., delivered the opinion of the court. The Price Veneer & Lumber Company, appellee, commenced this suit by attachment against the,Pioneer Box Company, appellant, on the ground that it was a foreign corporation, and indebted to the appellee in the sum of three thousand dollars, the purchase price of two cars of veneer, and from a. judgment for the sum of two thousand six hundred twenty-seven dollars and forty-seven cents, this appeal was prosecuted. — 195 — The alleged contract upon which the declaration was based appears in certain correspondence between the parties. On September 2, 1920, the appellant wrote appellee as follows: “If you are in a position to take on some extra orders, we would like to have you quote us three-sixteenths and one-fourth inch rotary cut lumber. •“We would like to place orders for shipments at regular intervals and if you can furnish us a portion of your production, we would like to figure with you. At present, we are getting more veneer than we are consuming but some of the mills are small and are not as desirable as mills like yours.” Appellee replied to this letter by telegram, dated September 3, 1920, and reading as follows: “Quote to-day twenty-five cars or less, two cars per week seventy-two ■ fifty (72.50) quarter inch seventy-five three sixteenths Association rules governing up to fifty-six long and sixteen wide.” On September 4, 1920, appellant wrote appellee in reply : “We are in receipt of your telegram of the 3d quoting us seventy-two dollars and fifty cents on quarter inch and seventy-five dollars on three-sixteenths B. M., f. o. b. Columbia. “Our E. St. Louis plant will mail you orders for ten cars to be shipped at the rate of two cars a week. “Before you have completed these ten cars the chances are that we will place more orders but do not think it advisable to buy twenty-five cars on the present market.” On September 7, 1920, appellee wrote appellant as follows : “Yours of the 4th received. Will say if only accepting ten cars, will contract to ship, one or more cars per week as we can place other fifteen cars elsewhere, and they will be wanting some stock along with yours, possibly you will get two per week according to the good or bad luck we — 196 — have, as you know the ups and downs we sometimes have from your own experiences.” On September 13, 1920, appellant’s East St. Louis office forwarded to appellee thirteen purchase orders for veneer, these various orders being identical in form except in the quantities, material, and price specified, and each of them containing the following notation: “Acknowledge order promptly and state shipping date".” Appellee received and filed these orders, but did not acknowledge receipt thereof or make any reply thereto, and on October 19, 1920, appellant wrote appellee canceling the orders, and saying: i “With reference to the ten-car order of box stock placed with you the first of September on checking up, we find that up to date, you have not made shipment of any of the stock: In the meantime, we have been mailing very strenuous efforts to get our sheds filled up for the winter and have been obliged to buy again the ten cars which we had.contracted from-you. “If you will refer to your letter of Sept.'7th, yon- will find that you promise at least one car per week, with a possibility of two cars. Inasmuch as you have not started shipment, we will ask that you kindly cancel our order which you still have.” On October 21, 1920, appellee wrote appellant as follows : “Yours of 19th received and somewhat surprised in your cancellation of ten cars that you purchased from us, but we cannot accept your cancellation as we are now making your stock and when we start shipping we will give you one, two, or more cars per week as per our contract with you. “At present we have two cars of your stock out and ready for shipping which will be shipped as soon as we can secure cars for same.” On October 23, 1920, appellant wired appellee: “We will not accept shipment from you. Letter following.” — 197 — And on the same date appellee replied by wire: “Your telegram received. One car yonr stock loaded and other car loading. Must ship these. Answer.” On October 23, 1920, appellant wrote appellee as follows: “We are in receipt of your letter of Oct. 21, which is in reply to our letter of the 19th, asking you to cancel our order for ten cars given to you about the first of September. “Had you shipped these cars when you agreed to, we would have been glad to accept them, but conditions have changed now and business has dropped off and we are not in position to take on another car of veneer. . At present our E. fe't. Louis plant is embargoed, due to the fact that we have so many cars in transit and in the yard and our Crawfordsville plant has about seventeen cars in transit and only enough room to store five of these. “For the above reasons it is impossible for us to accept any shipments from you and we must ask that you comply with our letter of the 19th and cancel this order for ten cars.....And if you ship us any veneer we will not accept it. “We regret very much to be so positive in this statement but as the conditions are just as we have stated we cannot, take on any more veneer.” On October 25, 1920, appellant wired appellee : “You can ship the two cars of veneer.” And this telegram was followed by a letter dated October 26, 1920, saying: “We are in receipt of your telegram in which you state that yon have one car of our stock loaded and another car ready to ship. We have wired you, you can ship the two cars of veneer. “It was not our intention to keep you from shipping any stock that you might have cut on our order, but we did not want you to cut'any stock on the orders we placed with you if they were not in the process of manufacture. “When you did not ship on our order that we gave you approximately two months ago, we took it for granted that — 198 — you were not in need of orders and had more profitable business.” There was additional correspondente between the parties, but we do not deem it material to a decision of the questions now presented. The two cars referred to' in the last two telegrams herein set out were shipped, one on October 23, 1920, the other on October 26, 1920, and these cars were received and promptly paid for by appellant. On November 6, 1920, and November 13, 1920, the two cars sued for were shipped, and these two cars were refused by appellant. Later, under instructions from appellee, they were sold by the railroad cqmpany for freight and demurrage charges. There are numerous assignments of error, but, under our view of this case, it will only be necessary to consider the assignment based upon the action of the court in refusing a peremptory instruction for appellant. We do not think the judgment of the court below can be upheld either on the law or the facts. A detailed statement of the facts, other than the correspondence herein set out, is not material to a decision of the question involved. The initial telegram of appellee offered to ship two cars per week, Association rules governing up to fifty-six long and sixteen wide. Paragraph 1 of the Association rules which were given in evidence, provides that — ■ “All orders and contracts shall be written and signed by both parties, or signed by the buyer and accepted in writing by the seller.” In reply to appellee’s initial offer appellant indicated a purpose to accept ten cars to be shipped at the rate of two cars per week. Appellee replied with a counter proposition to furnish ten cars at the rate of one or more cars per week, and to this, offer appellant replied by forwarding orders for certain quantities of the lumber, but expressly requiring that these orders should be acknowledged in writing and the shipping date fixed, thereby constituting an acceptance of the orders. Appellee did not acknowledge receipt of these orders, or communicate in any manner its — 199 — acceptance of them, or intention to accept them. The contention of appellee that its intention to accept and its acceptance of the orders were evidenced by its acts in filing the orders and commencing the preparation of the stock called for thereby cannot prevail for the reason that an acceptance must be evidenced by some conduct or acts actually communicated to the offerer. “The mere intention to accept is not sufficient if no notice of such intention is communicated to the proposer within a reasonable time or in accordance with the terms of the offer.” Elliott on Contracts, p. 50. The appellant had the right to require an acknowledgment and acceptance in writing, and a fixation of the shipping dates, an essential matter which the negotiations had left uncertain and unsettled. For more than thirty days after the orders were forwarded appellee remained silent, his acceptance not being indicated either by writing or the shipment of any part of the lumber ordered. In the absence of an acceptance of the orders in accordance with the terms thereof, the appellant, on October 19, 1920, thirty-six days after the orders had been mailed to appellee, exercised its right to countermand the orders, and thereafter it was under no contractual obligation to accept any shipment from appellee. The acceptance of the two cars which were shipped on October 23d and 26th was the result of further negotiations in reference to these particular cars, and there was a distinct understanding that these cars would be accepted solely for the purpose, of relieving appellee of the stock already manufactured to apply on these orders, and that the cancellation of the orders was not waived as to further shipments. After the countermand of these orders, before acceptance thereof, there was no obligation on appellant to receive further shipments thereon, and no liability for the purchase price of the two cars shipped in November, and for which this suit was brought. The judgment of the court below will therefore be reversed, and a decree entered here for appellant. Reversed, and judgment for appellant.