Osterling v. Smith ( 1916 )

Opinion by

Hendeeson, J.,

The majority of the court are of the opinion that the judgment of the court below should be affirmed. The affidavit of defense on which a part of the argument of the appellants is based was not offered in evidence and no conclusion of fact from any declarations therein made could have been used by the jury to aid in the inquiry whether any additions were made to the contract other than the tender offered by the plaintiffs and the acceptance by .the defendant. At the time of this tender of prices on July 15, 1902, the defendant had not contracted for the construction of the court house and it was not until the acceptance of the plaintiffs’ offer as of March 10, 1903, that any liability of the defendant existed in favor of the plaintiffs. The plaintiffs claimed to' have a contract as of that date and declined to enter into any contract in writing of a different tenor or import. On March 17th F. J. Osterling, the architect, informed the plaintiffs that the defendant had that day awarded to them the contract for furnishing the required stone for the exterior of the building and on March 18th the plaintiffs in a letter to the defendant stated that they had received instructions from P. J. Osterling, the architect, .to proceed at once and get out the stone for the new court house; the letter also contained the thanks of the plaintiffs for the order. It seems clear that the plaintiffs claimed at that time to have a contract with the defendant for the furnishing of the stone.' Between the date of the plaintiffs’ tender of price in July, 1902, and the date in March, 1903, when the architect notified the plaintiffs of the a Avar ding of the contract to the latter, and the plaintiffs notified the defendant that they would proceed at once and get out the stone no qualifying agreement is shown to have been made or any change in price except that indicated by the letter of the architect of March 17th. The learned trial judge was of the opinion, therefore, that the offer of declarations of the defendant made at a later time that he intended to have the plaintiffs furnish stone for the whole contract, was irrelevant and this conclusion is supported by the evidence. The effect of the assignment by the defendant to Carlucci Bros, and of the defendant’s power of attorney to them was well considered by the court and in accordance with the terms of the documents involved. The case Avas carefully tried and elaborately discussed by the learned trial judge in disposing of the plaintiffs’ motion for a neAV trial and the defendant’s motion for judgment non obstante as to the second special verdict and a repetition of the citations of authority would not be profitable here. Our conclusion is that the judgment be affirmed.