Eau Claire Canning Co. v. Western Brokerage Co. , 115 Ill. App. 71 ( 1904 )

Mr. Justice Ball

delivered the opinion of the court.

If this case is to rest solely upon the bought and sold notes, then there is no contract, for they differ in at least two material respects. These notes are not the contract itself, but are memoranda only, advising the parties of the contract as made. That this is so is shown by the fact that the bought note is delivered to the buyer and the sold note to the seller. If they were intended .to constitute the contract the deliveries would be reversed. But in the absence of evidence of the entry of the sale upon the sales book of the broker, the bought and sold notes may be received as evidence of the contract. If thus received, and there be any material variance between them, they are nullities, and the contract is not proven by them. Sievewright v. Archibald, 79 E. C. L. 114, 123; Suydam v. Clark, 2 Sandf. N. Y. 133; Thornton v. Kempster, 5 Taunt. 786; Peltier v. Collins, 3 Wend. 459. The note given appellee specified standard Ho. 3 tomatoes, while that given to Knight & Co. called for three-pound tomatoes. The evidence shows that there is a marked difference between these two grades. Further, the prior note says nothing as to swells; the latter contains the phrase, “ Season’s guarantee on swells.” The preponderance of the evidence is. that by the custom, of the Chicago market the guaranty created by this phrase runs for twelve months. It is, therefore, apparent that the bought and sold notes do not prove a contract. On the contrary, considered by themselves, they show that the minds of these parties never met.

The correspondence between appellant and Knight & Co. prior to June 20, 1901, shows that the latter intended to sell upon the Chicago market under its custom. Indeed, all the tomatoes it sold during the season of 1901 in this market were thus disposed of. The evidence fully warranted the trial judge in holding that Reese, the secretary and business manager of appellant, knew of that custom prior to June 20, 1901, and assented to the same.

June 20 the broker wrote appellant: “We now have a proposition from an Iowa jobber, who offers seventy-five cents less fifteen cents per hundred freight for 5,000 cases. * * * Please let us know promptly whether or not you will accept- this offer.” Under date of June 21 appellant replied: “Referring to yours of the 20th inst.' Will state that if you can secure order for 5,000 cases 3 lb. tomatoes at seventy-five cents, we- will allow fifteen cents per cwt, freight.”

By telegram and letter dated June 24 the broker informed appellant he had made the sale, and sends a memorandum thereof in the letter. That paper reads:

“ Memorandum.

Chicago, June 24, 1901.

Sales by For account of

W. S. Knight & Co. Eau Claire Packing Co.

As per telegraphic advices.

Western Brokerage Co.

5,000 Cases 3 lb. Tomatoes, 75 cts.

F. O. B. Factory. Less 15 cts. per 100 lbs. freight allowance, cash less 1§- per cent. To be shipped when packed. Pack of 1901. Season’s guarantee on swells.”

This letter concluded with the following: - “P. S. Please wire us if you will sell 5,000 more, same price.” The response of appellant dated June 26 contains the following: ‘•'Out of a contract of nearly 200 acres of tomatoes we will not be able to secure more than one-half that amount, and we do not feel like contracting any farther futures less than seventy-five cents straight f. o. b. at our factory.”

In July or August, 1901, Reese came to Chicago. Eagle says Reese then told him the prospect for a crop of tomatoes was bad. Eagle advised him to see appellee, who was in the city, and he promised to do so. Later on Reese told Eagle that he could not fill the contract of appellee, and was again advised to see appellee and settle with it, and he promised so to do. These conversations Reese does not deny; he contents himself by saying he does not remember them. Appellant suffered the letter of appellee concerning the delivery of the tomatoes, dated September 23, and. sent by the broker to it the next day, to remain unanswered. It was not until in October, when confronted by Smith at the factory, that Reese denied the existence of any contract between the parties hereto.

The report of this sale as sent appellant June 24, 1901, in some respects differs from the wording of its acceptance of the offer as shown 'bv its letter of June 21, and in some respects may be a harder bargain for it than was its acceptance. But it was fully informed of such differences, and it was then the duty of appellant to notify Knight & Co., or appellee, within a reasonable time, of its refusal to be bound by the sale as reported, if it did not intend to accept the same. No such word was sent to either party. On the contrary appellant impliedly, if it dpes not expressly, approved what its agent had done by its letter to Knight & Co., June 26, saying, “We do not feel like contracting for any farther futures less than 75 cts. straight.” In July and in August of that year Reese recognizes the existence and validity of this contract, and, claiming to be unable to fill it, agrees to call upon appellee to see what can be done by way of settlement. It was not until four months had elapSbd, and after appellee, relaying upon it, had resold the goods at an advance, that appellant denied the existence of the contract. It is but just and equitable that appellant under these circumstances should be held bound by such memorandum. To hold otherwise would enable a seller to lie hid behind some technicality until the law of supply and demand made the contract a certain profit or loss, and then to come out on the side dictated by his selfish interest. The law will not tolerate such indirection. The learned judge who heard this case decided it justly, and we affirm his finding.

The judgment of the Superior Court is affirmed.

Affirmed.