Master Builders Co. v. Clinton Construction Co.

This is an appeal from the judgment awarding plaintiff $3,060 upon a contract found by the court to have been entered into between plaintiff, an Ohio corporation, and defendant, a California Corporation, whereby.plaintiff agreed to manufacture for and deliver to defendant 21,500 pounds of Colormix at twenty-two cents per pound, to be delivered f. o. b. Cleveland, Ohio, between January 21 and May 1, 1925, upon which contract plaintiff manufactured and delivered between January 21 and April 13, 1925, 3,550 pounds of the Colormix and was at all times ready and willing to deliver the balance, but that defendant refused to accept the same, and finding that by reason of defendant refusing to accept the balance of the Colormix called for in the contract that plaintiff was damaged in the sum of $3,060, for which judgment was entered, and from such judgment defendant has instituted this appeal.

Appellant urges under general headings the following points on which he relies for a reversal of the judgment: (1) There was no meeting of the minds of the parties; (2) an oral order would have been within the statute of frauds; (3) plaintiff did not perform nor offer to perform the alleged contract on its part; (4) the vice-president of defendant corporation had no authority to bind the corporation by an oral order; (5) the complaint does not set forth facts sufficient to constitute a cause of action.

Under the first general heading appellant asserts: “(a) plaintiff communicated its acceptance of a written proposition, bearing the false signature of defendant and its vice-

The record contains the following evidence relative to the transaction between the parties. In January, 1925, Joseph E. Rodgers, local agent of plaintiff, called upon A. Huber, vice-president of defendant corporation, at defendant’s place of business and discussed the placing by defendant of the order for Colormix. Mr. Rodgers testified: “We figured up the quantity of material that would be required from the plans and specifications of the San Francisco Relief Home,” and Mr. Huber then placed the order at twenty-seven cents per pound. Mr. Huber stated that “for the quantity involved the price was, in his judgment, a little bit high,” and in an effort to secure a price that might be a little more favorable to defendant he (Rodgers) wired to Cleveland and received a reply to his telegram by wire, which he showed Huber, “Best price on eighteen thousand pounds Red Colormix twenty two cents per pound F. O. B. Cleveland.” Mr. Rodgers further testified as follows: “Mr. Huber then told me to go ahead and write up the order on the basis of 18,000 pounds of one color and 3500 pounds of another color, which I did. He "requested if I could not make that price which was mentioned in the telegram the guarantee delivery price at San Francisco, and I said that that would be impossible, because it would—as the material was then requested for delivery later in the year, I didn’t know definitely whether a carload of material would be coming forward at that time, in which this could be included, or whether it would have come by itself, and, of course, it would take different rates of freight both ways. I then phoned in Mr. Huber’s—I phoned the railroad—and told him the difference in the rates between the two materials and why it was impossible for me to give a guarantee delivery price at San Francisco. I told Mr. Huber then if a

Mr. Rodgers wrote and mailed a letter, which bears date January 21, 1925, to defendant, containing the following: “Confirming our verbal agreement of today, we are entering your order for 18,000 lbs. Master Builders Tile Red Colormix and 3500 lbs. Battleship Gray Colormix, at the agreed price of 22c per pound, F. O. B. Cleveland Ohio,— same price both colors.” Mr. Rodgers received no reply to this letter. Prior to February 5, 1925, Rodgers received a phone message from Mr. Huber requesting that the red part of the order be held up and Rodgers informed him that it would be impossible to hold up any part of the order originally given because the matter was entirely in the hands of the Master Builders Company, and they would be the ones to come to any decision regarding the matter. On January 23, 1925, Rodgers filled out an order blank and forwarded it to plaintiff calling for 18,000 pounds of red Colormix and 3,500 pounds of battleship gray and at the bottom wrote in the name under the signature of purchaser, “Clinton Const. Co. A. Huber.” On February 5, 1925, defendant Avrote J. E. Rodgers & Co.: “Kindly enter our order for approximately 3500 lbs. Battleship Gray Colormix. Price: 22 cents per pound, f. o. b. Cleveland, Ohio. Deliveries : 700 lbs. immediately. Balance April 1-1925. Confirming our telephonic conversation of recent date, we wish to inform you that we have not made a decision on the type of red color hardner Ave intend to use. We will mail you a written order should we decide to use ‘Master Builders’ Red Tile Colormix.” Plaintiff wired to defendant, February 5, 1925, as follows: ‘ ‘ Our representative Rodgers advises substitution for Colormix order being attempted Stop Be advised that order accepted manufactured for you and partly shipped Stop Can accept no change or cancellation See order signed by your Mr. Huber.”

Sylvester W. Flesheim, president of plaintiff corporation, testified that J.

There was clearly a meeting of minds when defendant accepted the price of twenty-two cents in the telegram from plaintiff and confirmed in Rodgers’ telegram to plaintiff. The fact that plaintiff in its telegram to defendant of February 5, 1924, stating that it would accept no cancellation or modification of the order, referred to the order signed by Huber, does not alter the situation, as the written order to which Rodgers attached Huber’s name was merely an order reciting the terms of the verbal contract before entered into. If this were a case where it was agreed that the terms of the verbal contract were subsequently to be reduced to writing, there would be merit in defendant’s contention (Las Palmas etc. Distillery v. Garret & Co., 167 Cal. 399 [ 139 Pac. 1077 ]), but such is not the case here.

The conclusion reached in the present case is not, as claimed by appellant, in conflict with the rule announced in Harvey v. Duffey, 99 Cal. 401 [ 33 Pac. 897 ]. In the Harvey case the defendants had in their possession a catalogue of the Grifimg Iron Company in which was listed the goods in question (radiators), and upon the fly-leaf thereof was the following statement: “To enable us to fill our orders promptly, we carry at all times an enormous stock, comprising at all times every style as shown in our list.” On April 3, 1890, the defendants, acting upon the statement in the catalogue, sent to the Grifimg Iron Company a telegram asking for the lowest price on radiators. The company did not reply to this telegram, but wired plaintiff to call upon defendants and quote the price. On receipt of the wire Harvey called upon defendants and ob

The facts in the case quoted from and in the present case are not analogous. Here Rodgers called upon Huber, the vice-president and manager of defendant corporation, who placed the order with him for the Colormix at twenty-seven cents per pound, but as Huber thought a better price could be made for such a quantity of the material, Rodgers tele

It will be noted that in Harvey v. Duffey the defendants advertised in their catalogue that they had the radiators listed therein in stock for immediate delivery and therefore the manufacture thereof would not be necessary, and the court held that there was no meeting of minds on a contract to manufacture, which fact was not an element here. It further appears in that case that the defendants never “received any reply or notice whatever of the receipt or acceptance of the order from the company or Harvey or anyone else” before it was rescinded, while here the defendant was notified by Rodgers on January 21, 1925, of the fact that the order was entered and a portion of the material ordered was delivered to and accepted by defendant before the red Colormix portion of the order was attempted to be canceled or ordered held in abeyance by Huber’s tele

As to appellant’s second point that the oral agreement is within the statute of frauds in that “ (a) there is no evidence to sustain the finding of the court that there was a contract to manufacture; and (b) the gray Colormix was not accepted as and for a part performance of the alleged oral order”; it may be said Mr. Huber in his testimony admitted that a part of the Colormix was received and used in the building for which it was ordered. “Q. Is it not a fact that the gray Colormix was used on this job and part of the red? A. Yes. Q. Where was it used, on the sidewalks? A. No, on the floor. Q. But the gray was used first? A. Yes. Q. Is it not a fact that you got some shipment in January? A. Of the gray. Q. Of the gray. A. We might have; I think we did probably.” This is sufficient under section 1739 of the Civil Code to take the oral agreement out of the statute of frauds. The fact that the gray Colormix “and part of the red” was used on the job is sufficient to sustain the finding that the gray Color-mix was accepted as a part performance of the oral contract.

From the foregoing it is apparent that there is no merit in appellant’s third contention “that plaintiff did not perform nor offer to perform the alleged contract on its part,” nor that defendant, in accepting the offer of plaintiff, added a new stipulation to the acceptance and the acceptance was not therefore “absolute and unqualified” and that the stipulation in regard to freight rate constituted a new proposal. As has already been said, Rodgers’ statement to Huber that if a full car was coming forward at the time when he would require his material, the company would give him the benefit of the carload rate, but that he wanted it understood that if they did not have a car coming forward he would have to pay the twenty-two cents f. o. b. Cleveland, plus whatever freight was involved, did not alter the contract, but was merely an offer on the part of Rodgers to save defendant money on freight, if he could do so.

It may likewise be said that appellant’s fourth and fifth contentions, viz., that the vice-president of defendant corporation had no authority to bind the corporation by an oral order, and that the complaint does not state a cause

The objection to the complaint is that the allegation on which damages are based is insufficient. The paragraph objected to is: “That defendant has wholly failed and refused to take the balance of said Colormix and that plaintiff had incurred liability for commissions on the sale of the same, and has lost the profits arising from said sale, and has thereby been damaged in the premises in the sum of Three .Thousand and Sixty ($3,060.00) Dollars.” This allegation is sufficient (Ahlers v. Smiley, 163 Cal. 200 [ 124 Pac. 827 ]; Tahoe Ice Co. v. Union Ice Co., 109 Cal. 242 [ 41 Pac. 1020 ]).

We have examined the authorities cited by appellant and do not question the principles they announce, but merely their application to the facts in the present case.

The judgment is affirmed.

Tyler, P. J., and Knight, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on September 27, 1928, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 25', 1928.

.All the Justices present concurred.