Wisconsin Metal Products Co. v. Rusk Manufacturing Co.

Owen, J. While the plaintiff claims that the contract prepared and submitted by the defendant for 600,000 handles was signed by the plaintiff, it is conceded that it was never returned to the defendant. It is claimed that the failure to return the same was due to an oversight on the part of a stenographer in plaintiff’s office. Of course the reason for the failure to return'the contract is not material. In view of the fact that it was not returned, the signing and execution thereof on the part of the plaintiff, if it was signed and executed, created no contractual relations between the parties. Whatever contract existed was created by the correspondence between them, which is set out in considerable detail in the statement of facts. The trial court held that the correspondence did not amount to an order for 600,000 handles, which finding we readily approve. In the early part of the correspondence between the parties the plaintiff insists that the defendant shall prepare and submit a contract for the furnishing of the 600,000 han162 dies. This the defendant did on October 24th. In the further correspondence no reference is made to the form of con- , tract so submitted. Its receipt is not even acknowledged. For the next month, and longer, plaintiff’s correspondence is of a prodding nature, urging defendant to make shipment on the order for small handles. Not until November 31st did plaintiff say anything which would indicate to the defendant that plaintiff was even considering the ordering of any more handles. In its letter of that date plaintiff said: “As you know, gentlemen, we have sort of placed ourselves in your hands for the coming season and our orders will have to have a whole lot better attention than this first one didand in its letter of December 7th, in which it asks for a personal interview, this expression is used: “As we advised you in our previous letter, we have cast our lot with you for the next year.” This is very general language, and does not even approach an acceptance of the proposition submitted by the defendant. Upon the defendant’s calling the attention of plaintiff to the fact that it did not have a contract for large handles, the plaintiff, in its letter of December 12th, expresses apparent surprise, saying that it did not understand what was meant by defendant’s statement that it did not have the contract for the large handles, “as we consider the matter of large handles placed with you for the coming season and would like to have yoü explain to us just what you mean.” Again this falls short of being an acceptance of defendant’s proposition to supply the 600,000 handles. That it was not so intended is indicated by plaintiff’s reply to defendant’s letter saying, “your letter is now considered as a contract by us closing the matter.” If plaintiff had said nothing in reply to this letter, its previous correspondence might be construed as an acceptance of defendant’s proposition, but it is quite evident that the plaintiff did not want the correspondence so construed, because, on December 22d, plaintiff wrote the defendant as follows: “Regarditig the con [163] tract you sent us, these are still on the writer’s desk, and the only reason they have not been returned was because we wanted to see just what kind of goods you were going to turn out. As we have written you previously, we really consider that we are tied up with you for the coming year, and will see that one of the contracts is signed and returned to you.” Note the expression, “we really consider that we are tied up with you for the coming year.” This is not a statement to the effect that “we consider that we have entered into a contract with you for our requirements for the coming .year,” or for “600,000 handles,” and defendant is given distinctly to understand that the contract will in the future be signed and returned, for the plaintiff says that we “will see that one of the contracts is signed and returned to you.” Up to this time the nature and tone of the correspondence strongly suggests that plaintiff studiously avoided entering into a definite contract with the defendant for the 600,000 handles. The plaintiff had expressed a doubt concerning the ability of the defendant to supply it with its requirements; it had stated that it was not its custom to tie itself up with one manufacturer; that it did not generally enter into contracts for the year’s supply until February; and the service rendered by the defendant upon the first 100,000 small handles was not satisfactory to the plaintiff, nor reassuring as to its ability to supply the larger contract. Much of the correspondence was expressive of plaintiff’s impatience because of the delay in shipping under the order for small handles. When they did arrive they were not entirely satisfactory. They were not crated as desired, and plaintiff was not at all satisfied with the rate at which deliveries were being made. Plaintiff’s attitude is rather clearly revealed when in its letter of December 22d, receiving the first shipment of handles under its order of September 5th, it said: “will see that one of the contracts is signed and returned to you.” It did [164] not want to abandon negotiations and yet it wanted to be in a position to say “we have entered into no contract with you.” Furthermore, the letter of December 22d clearly indicates that up t<3 that time plaintiff did not regard the contract as closed, as it says, referring to the contracts, “these are still on the writer’s desk, and the only reason they have not been returned was because we 'wanted to see just what kind of goods you were going to turn out.” Plainly they were holding the matter in abeyance and did not regard the contract as closed notwithstanding the intimations to the contrary in its letters of December 12th and 14th.» If the contract was not closed on December 22d, defendant’s proposition was not accepted at any time thereafter. The acceptance of an offer, to be effectual, must be identical with the offer and unconditional. Hess v. Holt L. Co. 175 Wis. 451, 185 N. W. 522. The defendant had forwarded its offer on October 24th. An unconditional acceptance of that offer would have constituted a contract. This offer was never accepted by the plaintiff. Its letter of January 9th, in which it was stated they wanted 100,000 large handles quickly, was not an ac-, ceptance of defendant’s offer. If it was anything, it was an order for 100,000 of the large handles, presumably at the price for which defendant had offered to furnish them. The trial court properly so held, and in awarding plaintiff the damages for the undelivei-ed portion of this order plaintiff recovered all to which it is entitled., This action was commenced in Racine county. Upon defendant’s motion the place of trial was changed to Rusk county. Plaintiff claims this was error. As the contract upon which recovery is permitted grew out of the order given by plaintiff for 100,000 large currycomb handles, which order was accepted by defendant at Hawkins, and the handles were to be delivered f. o. b. cars at Hawkins, and the breach occurred at Hawkins, it follows that no part of the cause of action arose in Racine county, and the [165] place, of trial was properly changed to Rusk county. See State ex rel. Webster Mfg. Co. v. Reid, post, p. 612, 188 N. W. 67. By the Court. — Judgment affirmed.