Clements v. Bolster , 1898 Pa. Super. LEXIS 172 ( 1898 )

Opinion by

Smith, J.,

The declaration avers, as the cause of action, a contract between the parties, embodied in a letter from the defendants to the plaintiff, dated January 23, 1894, and an answer by the plaintiff, elated January 24, 1894. The trial judge held that these letters formed “ a complete contract for the purchase and sale of the monument ” to which they referred. This instruction to the jury is, inter alia, assigned for error. Unless, therefore, the letters present such a contract, the declaration discloses no ground on which the plaintiff can recover, and the instruction complained of was erroneous.

These letters, as set forth in the declaration and shown on trial, we quote in full. The defendants first wrote as follows :

“Epheata, Pa., January 23,1894.

“ Me. Charles Clements :

“Dear Sir: We have sold monument No. 647, of your Design Drapery spire first size. Spire 1.5 X 1*5 X11-6 Plinth 2.0X2.0x1.3. Cap 3.2x3.2x2.1. Die 3.2X3.2X1-4. Base 4.4x4.4xl-6. To be dark quincy granite, first class job. To be six raised letters for name on base 3 1/2 in. large deep 3/8 in. sunk letters, for inscription 60,11/2 inches large. We will give you for this monument in complete order, six hundred dollars. There must be letter ‘B ’ instead of ‘H’ in cap, this is the best we can do. It also takes headstone which we will take yet and pay extra for it. We would also like to have your derrick to set up the monument. We will pay freight on derrick to return. We calculate to do more business with you in the future. We will pay for monument as soon as set up.”

“Yours very respectfully,

“ George Bolster & Sons.”

To this the plaintiff replied on the following day:

“ Boston, Mass., January 24,1894. ■ “ Messrs. Geoege Bolster & Sons, Epheata, Pa :

“Dear Sir: I have your favor of the 23d, giving order for No. 647 at $600, including lettering to amount you named. I have entered your order, but if you can give me $15.00 more on this I would like to have you allow it; cutting the price to $600 and not allowing anything for the lettering makes it rock bottom for good work and stock which I intend to give you in this monument.

“ Now as to derrick you would hardly want one sent from here as that would be too expensive for you. Why not get one from Philadelphia or Harrisburg. This will save you money. I think I can pnt you in correspondence with parties that will loan you a derrick or set the work for you.

“Yours truly,

“ Charles Clements.

“ P. S. Send on the lettering.”

The principles on which the legal effect of these letters is to be determined are thus defined by Mr. Justice Sergeant, in Slaymaker v. Irwin, 4 Wharton, 369: “ It is incumbent on a party suing to recover damages for breach of contract, to make out a clear case of some matter or thing mutually assented to, and agreed upon by the parties to the alleged contract. When the agreement is in writing, signed and executed by the parties, their assent to all that is contained in it, is no longer a matter of dispute; the questions which arise in such a case are of a different character. But when it is epistolary, consisting of a series of letters, containing inquiries, propositions and answers, it is necessary that some point should be attained, at which the distinct proposition of the one party is unqualifiedly acceded to by the other, so that nothing further is wanting on either side, to manifest that aggregatio mentium, which constitutes an agreement, and that junction of wills in the same identical manner, offered on one side and concurred in by the other, bringing everything to a conclusion, which in contemplation of law amounts to a contract. If a proposition be made by one man to another, to purchase an article from him at a certain price and on certain terms, which is accepted as offered, there is then an agreement or contract. But if, instead of accepting it, the party declines so doing, and then new terms of purchase are offered, the assent is yet to be given by the other to the terms thus varied. It is not a contract — it is the suggestion or proposal of a new subject of contract, on which the first party has again a right to pause, to consider, to accept, to reject, to suggest new terms; and all is in the meantime merely negotiation. Mr. Chitty, in his General Practice, in treating of the question, when the contract may be collected from several documents or letters, extracts this rule from the authorities : ‘ The whole terms of the contract when in writing need not be expressed on the same paper or documents, but may be collected from several letters containing proposals and alternate agréements between the parties,• but then the last communication, must be a distinct and unqualified assent, to an equally clear proposal; and if the last letter suggest any new or further proposition, requiring the assent of the other party, or some communication from him to complete the transaction, then no contract or agreement is constituted: ’ 1 Chitty, Gen. Prac. 118.”

In Joseph v. Richardson, 2 Pa. Superior Ct. 208, in an opinion by the president judge of this court, it was said on this subject: “ To constitute a contract the acceptance of the offer must be absolute and identical with the terms of the offer. If one offers another to do a definite thing, and that other person accepts conditionally, or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat, or it is in effect a counter proposal. This is elementary law.” According to all the authorities, a contract is not created by proposals and counter proposals; it arises only from the acceptance of a proposal. And this acceptance must be in exact conformity with the proposal; the minds of the parties must meet on every point presented in the offer. An acceptance qualified in any manner, or accompanied by any reservation, or new proposal, is not that union of minds in which the law recognizes a contract. An offer is not converted into a contract by a response proposing a deviation from its terms; it becomes a contract only when accepted in precise accordance with its terms.

It is evident from an examination of the letters of January 23d and 24th, that the proposals of the defendants were not. “ unqualifiedly acceded to ” by the plaintiff. On the contrary, he proposed a change in the price, and suggested a substitute for the sending of a derrick which formed part of the offer. We cannot say that this part of the offer was immaterial. The defendants regarded it as of sufficient importance to be embraced in their proposal, and on this point we are not to revise their judgment and substitute our own. The plaintiff could not hold the defendants to their offer by accepting it in part; there could be no contract without its acceptance as a whole. The variation proposed by the plaintiff was, in legal effect, a rejection of the offer, and precluded its acceptance thereafter, without the subsequent assent of the defendants. “ An acceptance, upon terms varying from those offered, is a rejection of the offer, and .puts an end to the negotiations, . . . . unless renewed by the proposer, or lie assents to the modification suggested: ” Railway Co. v. Rolling Mill Co., 119 U. S. 149; 1 Benjamin on Sales, page 106. The letters of the parties, in the present case, recited in the declaration as forming the contract on which the plaintiff seeks to recover, do not exhibit an offer with an acceptance in such terms as to create a contract, and the seventh assignment is sustained.

A letter from the defendants to the plaintiff, dated January 26, 1894, indicates a modification of the proposals contained in .the first two letters ; and in a letter to the defendants, dated July 9, 1894, the plaintiff says, “ I accepted the conditions named in your letter of the 26th.” Whether the letters written in January, 1894, taken together, form a contract, it is unnecessarjr now to decide; but if there was a sale of the monument mentioned in the first two letters on terms other than those indicated in those letters, the plaintiff has a right to recover in accordance with such terms, though it may become necessary to amend the declaration to make the final agreement admissible. In this connection the plaintiff’s letter dated April 9, 1894, becomes material, and should be admitted, while in the absence of a contract between the parties its rejection did the defendants no harm. The plaintiff contends that the word “ monument,” as used in this letter, corresponds in meaning to the word “ headstone,” also used, and that both refer to the stone therein offered for sale. The defendants insist that it refers to the monument mentioned in the two letters set forth in the declaration, and tends to sustain their contention that no contract for that monument had yet been made. While the construction of a writing is, in general, for the court, yet where “ words used in a contract are technical, or local, or generic or indefinite, or equivocal, on the face of the instrument, or made so by proof of extrinsic circumstances, parol evidence is admissible to explain by usage their meaning in the given case: ” Brown v. Brooks, 25 Pa. 210. Where words are susceptible of two interpretations, the ambiguity growing out of the manner in which they are used in the instrument may be relieved by showing their meaning in the trade in which they are employed and to which they are peculiar: McDonough v. Jolly Bros., 165 Pa. 542. Parol evidence, which is explanatory of the subject-matter of a written contract, consistent with its terms and necessary for its interpretation, is admissible: Church v. Clime, 116 Pa. 146. Whether, as trade terms, at the plaintiff’s place of business, at the date of the letter of April 9, 1894, the words “monument” and “headstone” were regarded as so far similar in meaning that either might be applied to such a stone as that described in the letter referred to, can be shown only by parol, and the construction of this letter may depend largely upon the evidence that may be producéd on this point.

Nothing in the letter embraced in the thirteenth assignment is competent evidence for the plaintiff except the first sentence of the last paragraph, relating to the delivery of the work, and this is competent only as an offer to deliver.

The letter embraced in the fourteenth assignment was properly admitted, as an offer of delivery, and notice that unless accepted the work would be sold on the defendant’s account. This was the proper course for the plaintiff to pursue, unless he chose to make delivery of the work and sue for the price.

Nothing in the remaining assignments requires further notice.

Judgment reversed, and venire de novo awarded.