Edward H. Everett Co. v. Cumberland Glass Manufacturing Co.

Dodge, J. That a contract was made to pay the plaintiff five per cent, if it would make sale of 5,000 gross of bottles for the defendant at the price named is undisputed. That the plaintiff did in good faith make a sale in attempted, though not exact, compliance with those terms, is also undisputed. That it notified defendant that it had sold, and defendant acknowledged such sale as made in pursuance of the contract, is established by the act of the latter in sending samples in pursuance of the telegram so notifying it. At this point, however, it is contended by defendant that no binding effect can be given to such act, because it was not notified that the sale was made on a different basis from that authorized, namely, on the basis of a delivered price in Milwaukee, involving not only the question whether the difference in price would cover the freight from Rochester to Milwaukee, but also the risk of loss and injury in transportation. But within ordinary course of mail, say a couple of days afterwards, defendant was notified of this fact by the letter of July 7th, that letter making it plain that plaintiff understood that the sale of which it had notified defendant, and which it expected the latter to accept, contained that term. Defendant having treated that sale as made, clearly the duty was to to notify plaintiff if any objection existed by reason of that modification, when information of it was received. Defendant then made no response whatever; neither did it upon receipt of plaintiff’s letter of July 16th, before any bottles had been shipped, either in pursuance of plaintiff’s sale to the Schlitz Brewing Company or in pursuance of defendant’s [547] own sale to the same company. That letter certainly gave information of plaintiff’s understanding that'its sale had been accepted and that shipments were to be made in pursuance of it. Defendant followed that letter by shipping bottles and invoicing them in accordance with the directions of that letter. It is, of course, contended that the latter act is not significant, because that shipment was equally consistent with the understanding that it had sold the same bottles to Schlitz and was merely shipping upon its own sale. That act was, however, for consideration by the court, with the duty to draw proper inferences therefrom as to the conduct and intent of the parties. Another significant circumstance is that defendant was informed by letter of July 23d that both the plaintiff and the Schlitz Brewing Company understood the shipments which were then being made, and the transactions with reference to the 5,000 gross of bottles, to be under and in pursuance of the sale by the plaintiff. To that letter and to that point of view the defendant made no protest, but continued shipping up to the 27th of July. On the 9th of August, for the first time, did it suggest any repudiation of the plaintiff’s sale. On that day plaintiff telegraphed defendant to complete the shipment of the 5,000 gross, and the latter replied that there was no record on its books or letter files of any order from the plaintiff to ship Schlitz any bottles, “ with otir acceptance of same.” This correspondence was supplemented by an examination on the stand of the defendant’s manager, in which he varied his position somewhat, contending that his conduct in August was due to an understanding that the samples had been found unsatisfactory under plaintiff’s sale to the Schlitz Brewing Company, and presenting an attitude which the court might well have considered significantly evasive. In the light of this evidence, we cannot say that the finding of fact by the trial court that plaintiff’s sale was approved and confirmed after defendant was notified of all [548] material parts of it is not justified by reasonable inferences to be drawn from the correspondence between the parties and the testimony of the defendant’s manager on the stand. If so, the liability for five per cent, on the selling price, not only of the bottles actually shipped, but of all which the plaintiff sold, necessarily results. By the Court.— Judgment affirmed.