Rider v. Wood , 138 Ala. 235 ( 1902 )

TYSON, J.

This action is brought to recover damaages for the breach of a contract which it is alleged was entered into between the plaintiff and defendant, whereby the latter agreed to deliver to the former .seven hundred cases of canned corn at and for a stipulated price. The important question presented is whether the minds of the parties ever concurred as to the terms of the alleged contract. In short, whether the plaintiff bound himself to receive the corn and whether the defendant was obligated to deliver it. For if there was no aggregate mentum — no meeting of the two minds in the thing to be done — neither of them was bound, and there was, of course, no agreement for a sale.

Negotiations or proposals between parties looking to a sale, are never obligatory until they are accepted. And so long as an important term of a proposal remains unaccepted or unagreed to by both parties, their minds have never met — there is lacking that element of mutual assent so essential to every agreement. In the absence of this element, the negotiations between the parties amount to nothing more than mere offers, which may be finally rejected by either without imposing any liability whatever. — Bissinger v. Prince, 117 Ala. 480. All negotiations between the plaintiff and defendant were in writing and evidenced, by letters that passed between them. These negotiations were opened by the plaintiff by letter of date June 12th, 1901, addressed to the defendant in Columbus, Indiana, his place of business, requesting him to quote his lowest price for best grade of standard corn f. o. b. Birmingham, Ala., 800 to 1,000 cases; also requesting his terms and a sample of the-corn. The defendant replied, quoting the price at 60c per dox. net at 15c per 100 lb. alloAvance; terms regular. Also telling plaiiitiff he could get sample of corn from Collins & Co. of his city. On receipt of this letter plaintiff asks for the loAvest price of corn delivered f. o. b. Birmingham, Ala., 800 cases net privilege of another car, etc. Again defendant replied quoting price at 65c per dox. and stating the freight to be 34c from fiis place to Birmingham.' Plaintiff then Avrote: “You may enter my order for one car of best grade standard 2 lb. canned sugar corn at 65c per dox. f. o: b. track in Birmingham, Ala., regular terms, Avitli privilege of íavo cars of same corn at some price. * * * I Avant the quality of the corn a little improved and a little sugar used in it, if you think it advisable. * * * 1 Avant as good corn as can be had for a standard grade, tender and SAveet.” Defendant AATote him: “We have booked your order for a car of 2 lb. SAveet corn, but you did not say Iioav many cases you Avanted. We can put 700 to 1,200 cases in a car. You being a stranger to us and a neAV customer Ave aaúII have to haAre reference as to your financial standing/’ Plaintiff in his reply to this letter failed to definitely designate the number of cases he Avanted, but said: “I presume I shall Avant about 1,500 cases in tAvo shipments/-’ and also failed to furnish the reference as to his financial standing that was required. He .stated in that letter that he avus sending a sample of the corn that he had been selling for another concern and Avanted to ltnoAV if the corn that, the defendant proposed to ship him Avas equal in every respect to that sample.

. Up to this point, it is clear that the plaintiff himself had not agreed to be bound, whatever may have been the attitude'of the defendant. Again the defendant after acknowledging receipt of the sample sent him and assuring the plaintiff that his corn was equally as good as the sample, inquired of him how many cases he would want; also stating that it was important to know this fact so as to'know how many cases he had actually sold in order that die might not sell more than he expected to pack. As the defendant’s business Avas that of canning corn, fruit, etc.', it is clear that the reason he assigned for AVanting the information inquired for Avas entirely reasonable. ■ To this plaintiff replied that he would Avant “1,3C0 cases, 2 doz. to case, 2 lb. cans at least, and may Avant. 1,500 cases. One car to be shipped about Oct. 1, or perhaps last of September, 1901, and the other car to be shipped during the spring of 1902.” Also expressing himself as being “exceedingly anxious about the quality of the goods, that it is good and in every particular up to the goods I have been selling for eight years,” etc. Defendant in reply to this proposition declined it and made a counter offer to sell plaintiff, saying: “We have booked your order for one car of 700 cases as per your letter of June 18th.” And repeated his demand for reference as to plaintiff’s financial standing. This brings us to a consideration of the letter Avritten by plaintiff upon Avhich turns the question that is decisive of this case. ■ Did plaintiff signify in it his unqualified acceptance of the proposal to sell him the 700 cases as per his letter of June 18th? The letter of June the 18th, it Avill be Avell to note, Avas written prior to the sending by plaintiff to defendant of the sample of corn formerly sold by him. That letter Avas evidently written after plaintiff had gotten .a sample of defendant’s corn from Collins & Co., for he says: “I Avant the quality of this corn a little improved and a little sugar used in it, if you think it adAdsable.” Continuing, he says: “I Avant to continue to use the brand always and I want as good corn as can be had for a standard grade, tender and SAveet.” It was a\ ith reference to the quality of the corn thus named that defendant made the offer to ship the 700 cases, and not Avirh reference to the sample sent to him by plaintiff. Repeating the question propounded above, did plaintiff accept the offer? To show that he did not, we have only to quote his letter: “In reply to yours of the 23rd inst. sayipg you have booked my order for 700 cases of corn as per my letter of June 18th. If I want 20 cases more can 1 get them? Please let me know at once. Rememher in yours of July 6 th you agree to give me corn equally as good as the sample I sent you, let me impress upon you the importance of doing that very thing, for I am guaranteeing the corn equal in every respect to the sample I sent you and if it falls short I will have trouble with it and should in such event look to you to make it good.”

It is scarcely necessary to point out that the plaintiff did not unequivocally say, that he would take the 700 cases. Besides he injected into the proposition made to him another important term or stipulation which had to be accepted by defendant before the latter could be held to have bound himself. That term was in substance that defendant should obligate himself to guarantee the corn to be equally as good as the sample sent him. The defendant rejected this, as he had the right to do, and can-celled the order which he had booked for the 700 cases. There was some further correspondence between them ■relating to the refusal of the defendant to enter into the contract, which, however, is not material to be here noticed, since it does not involve the making of a contract.

We feel constrained to hold that the parties never reached the point of an agreement and the plaintiff is not entitled to recover. A judgment will be here entered for defendant.

Reversed and rendered.