Anaconda Copper Mining Co. v. Houston

Me. Justice Freeman

delivered the opinion of the court.

The contention in this case relates chiefly to that clause printed on the letter-head of appellant’s letter of August 2, 1899, containing the order for the bill of lumber in controversy, which clause reads as follows : “ Where goods are not routed according to shipping directions the total freight charges accruing over lines not designated will be charged to the shippers. This order to be accepted only on this condition.” The shipping directions were “ ship via C., B. & N. and Gr. H.” It is urged by appellant’s attorneys that by the acceptance of the order, appellees agreed to be bound by the terms and conditions of this printed clause and agreed that in case they shipped the lumber over any lines not so designated they should be charged with the total freight charges over such lines.

It is contended on the part of appellees that this printed clause was no part of the contract, on the authority of Summers v. Hibbard, Spencer, Bartlett & Co., 50 Ill. App. 381, and the same case reported in 153 Ill. 102. In that case the letter-head of the appellants therein upon which they wrote an unqualified acceptance of an order for iron, contained the words printed thereon in small type, “ All sales subject to strikes' and accidents.” It was held that these words were inconsistent with the absolute contract contained in the written part of the same letter of acceptance, and the Supreme Court says: “ Upon the’ whole, we are inclined to the opinion that the mere fact that the words in question were printed in the caption of the paper on which appellants wrote their unqualified acceptance of the contract proposed by appellees, did not have the effect of reading them, into the agreement thereby consummated.” It was held that the fa,ct that the printed words which were not referred to in the body of the letter, were at the head of their letter-heads would not have the effect of preventing appellants from entering into an unconditional contract of sale.

In the case at bar, the printed clause under consideration may be said to be in some measure referred to in the writing, inasmuch as the shipping directions, also at the head of the appellant’s letter-head, contain a typewritten designation of certain railroads below the printed words “ Ship via.” It would have been easy for appellants to have added in their written order a reference to the printed condition. If, for example, in addition to the words, “ Please ship to us here as soon as possible,” such words as “subject to the above printed conditions,” had been added, it would probably have been conceded that the printed condition would thus be made a part of the contract when the order was accepted. We are inclined to the opinion that without some such reference a printed condition should not be considered a part of the written contract where an absolute order is given in writing and accepted by the other party. But in the case at bar, there being a written designation of the shipping route at the head of the letter-sheet in close proximity to the printed condition in controversy, and there being no inconsistency between the written and printed parts of the contract, we are of opinion that the acceptance of the order, without objection by appellees, constituted an agreement to ship in accordance with the shipping directions and upon the conditions named in the printed clause under consideration. See Haddaway v. Post, 35 Mo. App. 278, and cases there cited; Michaelis v. Wolf, 136 Ill. 68-72.

It is conceded, however, that the freight rate upon this lumber was the same by either of the routes—that by which appellants directed the lumber to be shipped, and that by which it.was actually shipped. Appellant suffered no damages by reason of the failure of appellees to ship the lumber in compliance with its direction. It appears, therefore, that while there was a breach of the contract it was not vital. It is a case of damnum, absque injuria.

This is a suit to recover the price of the lumber. It is sought to defend on the alleged ground that a condition of the contract was not complied with by the plaintiffs, appellees herein. We do not regard this as a condition precedent, but as one, the breach of which could be compensated for in damages.

Appellant has received the entire benefit of the contract without any loss or delay so far as appears. It seeks to avoid payment for goods it has received and appropriated, by taking advantage of a mistake which caused it absolutely no damage. It has received not merely a part of the consideration of the contract, but the entire consideration. Where a defendant has received even a partial benefit from the contract, and a breach may be compensated in damages, the plaintiff is entitled to recover. Boyle v. Guysinger, 12 Ind. 273; Romel v. Alexander, 46 N. E. Rep. 595; Pickens v. Bozell, 11 Ind. 275; Weintz v. Hafner, 78 Ill. 27; Bettini v. Gye, 1 Q. B. Div. 183. In the case last cited it is-said the court should look to the whole contract and “ gee whether the particular stipulation goes to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different in substance from what the defendant has stipulated for; or whether it merely partially affects it and may be compensated for in damages.” To hold that it was the intention of the parties in this case as a condition precedent to payment for the lumber that appellant should get it for practically nothing in case it was shipped by a route not specified, although appellant suffered no damage whatever thereby, would be to give a construction to the agreement not justified by its terms. The language of the condition in controversy is general, and does not expressly refer to any special contract of purchase and sale. It is a statement of a purpose on the part of appellants to charge to “ shippers,” not to appellees specifically, but to shippers in general, “the total freight charges accruing over lines not designated.” The idea conveyed by this phraseology would naturally be that if by carelessness or mistake goods should be shipped in some roundabout way over lines 'not making the most direct connection with the point of destination, any extra expense thereby incurred should be borne by the shippers; that is, they must bear the expense of their own negligence. In this case there was no such expense.

The judgment of the Circuit Court must be affirmed.