Southern Wire & Iron Co. v. Thomas , 256 S.W. 607 ( 1923 )

In the court's decision that the appellant's suit was barred by the two years' statute of limitation, there is involved the further conclusion by him that the agreement between the parties under which the building material in suit was sold and bought was an oral, and not a written, agreement. If the court was warranted in finding, or in attaching the legal effect to the evidence that the agreement was oral and not in writing, then the judgment must be affirmed, for it affirmatively appears that the appellant's suit was filed more than two, but less than four, years after the date of the alleged breach of the agreement. The appellee contends that the agreement was entirely oral and not in writing. The appellant contends that the two proposals signed by appellant, accompanied by the letter and telegram which the appellee sent, constituted a legal contract between them in writing; but if they did not constitute a contract, that then the two proposals signed by the appellant and mailed to the appellee and retained by him did, in legal effect, constitute a written contract between the parties.

The first question, then, is whether certain correspondence shows a contract. In determining what the one party intended and what the other party ought to have understood about the correspondence, regard must be had to the situation and purpose of the parties, the subject-matter and course of the negotiations. Prior to the date of the appellant's letter and inclosure of two proposals, the evidence is without conflict that appellee had only sought information from appellant concerning the prices, quality, and quantity of certain building material needed in the erection of a four-story brick store building. Under these circumstances, and evidently with the view of actually obtaining a contract of sale, the appellant mailed a letter to appellee inclosing proposals of sale of the material about which appellee had been inquiring. The letter informed the appellee that if, after looking over the inclosed proposals, they were "acceptable," then to "sign and return one copy to us immediately." After reading the letter and looking over the proposals, the appellee then sent a telegram saying:

"If this best price can use material. Am writing."

The language of the telegram is not that of an unconditional acceptance. The words "can use" do not indicate a positive acceptance. The words "am writing" were sufficient to put the appellant on notice that more would be said regarding the proposals, and sufficient to indicate that the appellee had not at that time accepted the proposals as they were written. The "writing," which was the letter of appellee, following the telegram, and received by appellant properly read does not evidence an acceptance, but rather a refusal, on the part of appellee to accept the proposals as they were written. The letter first expressly objects to both the quantity of and the price charged for the steel material as stated in the proposals. The letter insists that, as to the steel material, "the cost should have been reduced not less than $350, or in other words cut out 2,340 square feet flooring." He was entitled to determine whether price and quantity suited him. And, continuing further, the letter seems to make express objection to the lack of completeness and fullness of the proposals in the failure to guarantee "protection on the 24,000 pounds of steel." The letter in effect states that "We will call this off, and I will return your blueprints" for the reason that "I don't feel like I have had a square deal on the protection on the 24,000 pounds of steel." In the light of appellant's letter, the appellee was informed that certain "items" were not in the proposals because, "owing to changes in market conditions, we are unable to protect you any longer in the prices quoted on any of the other items," naming them. These "items" were a part of the material the appellee wanted to buy to go in the building to be erected. Therefore, it appears that the appellee's telegram failed to accept, and that his letter following the telegram refused to agree, to the proposals as they were written and offered to him. There is shown an insufficiency of assent on appellee's part. It is an elementary principle, common to all contracts, that there must be a mutual assent of the parties to the same subject-matter in the same sense. No contract is completed until each party has accepted every proposition of the other without modification or the addition of new matter. There must be a clear accession on both sides to one and the same set of terms. 1 Parsons on Contracts, 476; Bishop on Contracts, § 334; 1 Elliott on Contracts, § 26.

Next appellant insists that the appellee's act of retaining the proposals with voluntary acceptance on his part of the benefit of the transaction is equivalent to a consent to all the obligations arising from the proposals, and is in legal effect a contract. Assent of course may be indicated by conduct or acquiescence. In this case, though, such circumstances do not exist, for it is affirmatively shown that a day or two after sending the telegram and the letter the appellee went in person to see the vice president of appellant, and there new negotiations were entered into, and finally, according to appellee's evidence, an oral contract was mutually assented to, having somewhat new terms from the original written proposals. Under this distinct oral contract, according to appellee, the material was sold by appellant and purchased by him for the erection of a one-story, and not a three nor a four story, building. Therefore the evidence is sufficient to support the trial court's findings of purchase and sale under a distinct oral, and not written, agreement.

The case of Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076, cited by appellant, is different from this case.

The judgment is affirmed.