Butler v. Moses ( 1885 )

Follett, J.

No objection was made to the form of the pleadings, and it seems that all the facts of the case were presented to the jury that found in favor of Butler.

The doubt is in regard to the offer made in the postal card. What did Butler offer when he wrote, “ If you desire will send them to you, and you can use what you want and account to me for what you need at five - cents a yard that Gale would charge you.”

Gale was known by the parties to be a dealer in bolting-cloth, and what he would charge, was easily ascertained.

What Gale would charge was referred to as a standard of price. There is no other reason why Gale’s name was mentioned, or why what he would charge was referred to. And, on examination of all the card contains, it is clear that Butler did not make an unqualified offer to sell the cloth at five cents per yard, as neither five cents nor ten cents per yard could be what Gale would charge; but his offer was to charge either the same as Gale would charge, or more than Gale would charge, or less than Gale would charge.

In the circumstances the latter meaning was so” manifest that Prior, on reading the card, saw its true intent, and told Moses that Butler’s offer was to sell the cloth for five cents a yard less than Gale would charge him, and that it was not to sell at five cents a yard. And Moses, by thus sending for the cloth and using it, is bound by the trjia^ offer thus explained and known to him. But if Moses’ claim be true that he did not accept the offer, to sell for five cents a yard less than Gale would charge him, the minds of Butler and Moses never “ assented to the same thing in the same sense,” and no contract was made by them for the sale of this cloth. And in this view, as Moses has taken Butler’s cloth and put it to Moses’ use, Moses is liable to Butler for the value of the cloth so used. In this view Moses would not be entitled to the discount of five cents per yard which Butler gave him.

In either view of this case Moses is liable to Butler for all that was claimed in the petition in the court of common pleas, and the charge of the court was not to the prejudice of Moses.

The district court erred in reversing the judgment of the court of common pleas.

The motion is therefore granted, the judgment of the district court reversed, and that of the common pleas affirmed.