Stetson & Post Lumber Co. v. Commercial Sash & Door Co. , 299 F. 553 ( 1924 )

ROSS, Circuit Judge

(after stating the facts as above). The record shows that, in the negotiations between the parties, the witness Rabe represented the Sash & Door Company, and the witness Kehrer the Lumber Company. Rabe testified, among other things, that Exhibit A was written in triplicate, upon the original of which he wrote: “Accepted : Commercial Sash & Door Company, by A. K. Rabe.” Kehrer testified, among other things, that Exhibit A was not so signed, and that no contract was entered into between the parties. “That,” said the court below in its instructions to the jury, “is where the marked difference is between the parties — and which you must determine from all the testimony presented — whether the memorandum that was issued by the defendant, admittedly giving a statement of prices for certain materials, was used for the purpose of a basis for future orders and contracts, or whether it was merely advisory to the representative of the plaintiff company for the purpose of its consideration, and that the understanding was' that he return to the office of the defendant, and then, if agreeable, sign it, so that there would be a mutual agreement between the parties, one to sell and the other to buy. If that was the understanding when this memorandum, Exhibit 1 — A—well, this memorandum of prices and materials, if that was the understanding, then the plaintiff had no right to issue any orders to the defendant and expect fulfillment, because there had been no meeting of the minds between the two parties. They had not come to any agreement.” On the other hand, said the court, in effect, in its instructions, if Exhibit A was accepted by the plaintiff company as testified by Rabe, or if that exhibit was issued by the defendant company as a basis for future orders by the plaintiff up to the succeeding March 1, unless the offer was sooner recalled, then there was an agreement of minds between the parties, which had the effect subsequently explained by the court.

[1-3] The record shows that the offer was recalled December 9th. In the meantime three cars had been ordered, with which cars only, the court told the jury, it was concerned, adding:

“And you will determine, from all of the testimony in the case and the circumstances detailed here, what the fact is as to the relation between the parties and this list of materials and the prices thereto. If you find that this price list was issued simply for an advisory purpose, and for consideration by the plaintiff, and that a further conference was to be held with relation to it, and, if satisfactory, signed by the plaintiff, and that it was not so signed, then you will return a verdict in this case in favor of the defendant. On the other hand, if you find that the memorandum of prices was — whether signed! or not — was issued as a basis for orders, and to have effect and force until the 1st of March, then the defendant would be liable for the damages to plaintiff which it sustains, which would be the difference between the market price of the lumber, between the price agreed to be paid therefor and the market price of the same lumber on the day that it was contemplated by the contract that the lumber should be shipped to the plaintiff. In this connection you are in- " I ^ structed, however, that if there was a difference in the minds of the parties as to * * * the base or size for molding or casing contemplated by the plaintiff and standards and sizes for moldings and casings contemplated by the defendant, then you are instructed that there was no meeting of the minds between the parties with relation to the moldings, and, if there was no meeting of the minds between the parties with relation to the moldings, then there would be no contract of sale, because there is no specification in the memorandum, and, if there is no standard upon which the minds could meet, then the defendant would not be in a position to fill that part of the memorandum or contract”

The court thus properly left to the jury the determination of the facts, and instructed it correctly, as we think, respecting the law applicable to the facts.

The judgment is affirmed.