Dandyline Co. v. Linsk

216 Ill. App. 479, 1920 Ill. App. LEXIS 353

• Court: Appellate Court of Illinois
• Decided: February 11, 1920
• Docket: Gen. No. 24,582
• Status: Published

Opinions

Mr. Justice Taylor

delivered the opinion of the court.

Claiming that the defendant had failed to manufacture and deliver a certain quantity, of dresses pursuant to an alleged written contract, the plaintiff brought suit and obtained a judgment against the defendant in the sum of $2,970.

The plaintiff, a corporation, located in Chicago, was in the business of manufacturing and selling children’s dresses. The defendant is a resident of Philadelphia engaged in the manufacture of children’s and misses’ dresses. Prior to the matters here involved the parties had had some mutual business dealings. On November 10, 1917, the defendant and one Lewis, a Chicago representative, met with Myres and Pincus, officers of the plaintiff company, at the place of business of the latter company in Chicago. As a result of their negotiations on that occasion there was drawn up and signed by both parties the following instrument:

‘ ‘ Bought of Harry Linsk & Co. How Ship......

Town Philadelphia, Broad & When Dec., Jan.

Wallace Sts. & Feb.

State Pa. Salesman

T.ot No. Price Quantity Color

649 $13.00 100 doz. Asst. to follow

605/648 12.50 . 100 dz. 77 77 77

642/636 9.50 100 dz. 77 77 77

607/643 9.50 100 dz. 77 77 77

2% 10 day. 60 days dating'

3% 10 days

(Signed) Magnus Myres V. P.

O.K. H.L.”

The numbers 649, 605, 642 and 607 represented defendant’s lots or styles of dresses. The intermediate figures, 648, 636 and 643, referred to similar styles with different colors.

The phrase “Asst, to follow” meant that the assortment of models and sizes would be detailed later by the plaintiff to the defendant. On November 13, 1917, the plaintiff wrote to the defendant in part as follows:

“Confirming order which we placed with you for 400 dozen dresses, wish to state that we are sending you by express samples of these dresses.

“You will note that No. 607 is made in plaid and also comes in plain color under No. 643.

“Yon will note that No. 642 comes in stripes but is also made in plain color under No. 636.

“You will note that No. 605 comes in a plain and stripe combination and also comes in plain and plaid combination under No. 648.

“No. 649 is only as per sample with assorted yellow stripes.

“As soon as these samples are received, will you kindly make up samples which you are to submit, together with swatch of the materials to be furnished, and we will then O. K. same and return to you, together with list showing sizes and colors desired? Inasmuch as we are in special rush for these dresses, we would ask you to kindly make special effort and rush samples to us at once. ’ ’

On November 24, 1917, the defendant wrote the plaintiff in part as follows:

“We have today expressed to you style 649, 605 and 642, with swatches attached showing the .different colors. Style 636 we did not duplicate as yet as we haven’t the desirable cloth on hand. Upon receipt of these samples, please send us your sizes so that we can go ahead, while our piece goods stock is changing daily and we therefore cannot afford to wait too long.”

On November 28, 1917, the plaintiff wrote the defendant setting forth in detail under each lot number the materials, colors, sizes and quantities of each size desired. On December 1, 1917, the plaintiff acknowledged receipt of certain samples from the defendant stating, among other thing's, that Nos. 605, 636 and 642 were satisfactory; also stating that they had sent word in regard to No. 649 and that No. 605 would be satisfactory if made with a 4-inch hem. That letter further stated that 636 and 642 were satisfactory with the exception of the hem which should be 4 inches instead of 3, and that the percale collar should be changed to a Eepp collar. In that letter occurs the following language: “Inasmuch as these dresses are now satisfactory with the changes specified above, we trust you will put them in work at once and rush No. 605 to us by express as fast as it is ready.” In that letter, as to No. 649, a criticism was made of the stripes asking that other stripes be submitted for plaintiff’s consideration, and further that the hem was 3 inches instead of 4 and the skirt was 61 inches in width instead of 68, On December'3,-1917, the defendant wrote to the plaintiff stating that they could not change the material of No. 605 but would make the change in the hem, also change 636 and 642 as to the 4-incli hem. That letter stated that the percale collar was_ put on because it appeared on the plaintiff’s original sample and that they would change it to Repp. The following language is then used: “We will wait with these numbers until we receive the original corrected sample.” As to 605 the letter states: “As per your request, we will immediately put style 605 in work.” It was also stated in the same letter that as to 649 they could not give a different stripe from that which they had already submitted.

On December 5, 1917, the plaintiff wrote to the defendant: “We are in receipt of your valued favor of the 3rd and wish to state we wired you that it would be satisfactory to have you make No. 605.and 636 and 642 as per your letter and this we now beg to confirm. Make 605 in the Berwick stripe as per your sample. Make No. 636 and 642 with Repp collar and as per the corrected sample which we believe you have received by this time. * * In reference to No. 649, we regret to state we cannot use same in the material as per your sample.” On December 18, 1917, defendant wrote the plaintiff that they could not get the material promptly from the mills according to sample of lot 607 and that they would consider that order as canceled unless the plaintiff could wait for a late delivery.

On December 26,1917, the plaintiff received the first shipment of 44 dozen dresses and wrote to the defendant that those that purported to belong to No. 605, that is 25 dozen, were unsatisfactory and asking wha.t should be done with them, also stating that those that pertained to No. 642 the plaintiff will keep. That letter also asks when No. 607 would be shipped; it also states that sample of No. 649 “which you were going to make up and submit to us for O. K. has not as yet been received.”

Between December 18 and December 26,1917, Myres had a conversation with Linsk, the defendant company, in Philadelphia, and at that conversation Linsk said •that Nos. 605 and 642 were being made np and would be shipped very soon, but as to Nos. 607 and 649, he was waiting for ginghams from the mills in order to make the dresses in suitable fabrics; that they walked through the factory and Myres pointed out some goods and asked Linsk to submit that in dresses of No. 649; that Linsk said he would and would send a sample of the dress made in that stripe.

On December 29, 1917, the defendant wrote to the plaintiff stating that the dresses sent according to No. 605 although made of piece goods of lighter shade, it was the only thing they could get from the mills'; that, however, they would make another attempt to obtain a lighter shade for No. 605 and as soon as the dresses of No. 605 were returned he would credit the plaintiff; that as regards style No. 649, that he promised to make up and submit sample, he finds that they have a very small amount of it in stock and has written to the mill to ask how soon they may expect delivery.

On January 2,1918, the plaintiff wrote the defendant stating that the dresses of style No. 605 were being returned and that it would wait for the sample of style No. 649; that it insists on the defendant submitting sample of style No. 607 at once; that it would like to know when the dresses made up as per sample of Nos. 605 and 642 and 636 will be delivered.

On January 5,1918, the defendant wrote the plaintiff that as the mill advises him that it will be unable to send the piece goods he will be unable to deliver the merchandise Nos. 642 and 636. “You state that your order was taken in good faith. We agree with you, but the same was also taken subject to our getting- the materials from the mills. Our orders were also placed in good faith, but can do ■ nothing, in receiving no deliveries.”

On January 9, 1918, the plaintiff wrote to the defendant that it was willing to allow the defendant' to make substitutions where necessary providing they were of materials equally as good as the sample submitted to him. Myres testified that the samples were exhibited to Linsk before the order was signed. That the course of the market for gingham from November to January was upward; that no goods were delivered under No. 649; that the plaintiff turned back 25 dozen dresses of No. 605 on the ground that they were of inferior material and of poor quality; that the plaintiff accepted 19 dozen of No. 642; that no other goods were received.

On cross-examination Myres stated that the plaintiff submitted a sample of No. 649, and then the defendant submitted its copy of No. 649, but it was not considered satisfactory by the plaintiff; that the same was true of sample No. 605, but the plaintiff accepted that one; that they submitted sample No. 642 to the defendant and the defendant submitted its sample of No. 642, and that was accepted by the plaintiff-; that no sample of No. 607 was submitted; that they received 19 dozen of style No. 642 and kept them. Myres stated further on cross-examination that on December 20 the defendant told him, when in Philadelphia, that material for style No. 607 could not be secured from the mills before May, and that he, Myres, then took that sample away. Linsk testified that he talked with Myres and told him it would be impossible to get the exact pattern but that he could get something near and Myres said that would be satisfactory and submitted samples; that the samples were forwarded to Philadelphia; that the plaintiff did not approve of the sample on No. 649 and no goods were shipped on it; that the plaintiff forwarded samples on lots 649, 605 and 642; that 25 dozen were shipped on 605 and the defendant made up the other 75 dozen and was ready and willing to ship the balance; that the plaintiff returned the 25 dozen and the defendant gave him credit therefor; that as to style No. 642, the defendant submitted a sample which had been approved and 19 dozen were shipped; that they had no cloth for the balance; that in talking with Myres in Philadelphia about December 18, he told him that he would not be able to make up the balance of lot No. 642 because he did not have the cloth; that Myres said he still wished to have lot No. 649; that he told Myres that he had not approved sample No. 649; that he showed him the garment again and Myres said he could not use it; that Myres took samples and said he would try to buy it somewhere else; that he also took away samples of Nos. 642 and 607; that he showed him cloth in regard to No. 649 and that Myres said .it could not be approved as there was not enough gold in it and the defendant told him he had no other cloth to give him. That he made up samples for them and submitted Nos. 605, 642 and 649 and they accepted Nos. 605 and 642 and rejected 649 because they said the pattern did not answer the garment; that the sample defendant submitted was better than that the plaintiff submitted; that about December 18 in a conversation with Myres he told Myres that they had about finished the 100 dozen of No. 605, and about the same of No. 642; that he told Myres the plaintiff had not passed the cloth for No. 649; that they said it was not yellow enough; that Myres said he could not use defendant’s sample of lot No. 649; that Myres said that the defendant had not submitted a sample of No. 607; that the defendant told him he could not obtain the cloth; that Myres said he would have to take the samples back and try to get the merchandise elsewhere.'

The cause was tried before the court without a jury, and a judgment entered in favor of the plaintiff and against the defendant in the sum of $2,970. From that judgment this appeal is taken.

It is the contention of the defendant that the evidence does not justify the judgment. It is the theory of the defendant that the instrument of November 10, 1917, though signed by the plaintiff and “0. K.’d” by a representative of the defendant, did not in itself contain all the essential terms of a completed contract, but was some evidence, to be taken in conjunction with certain correspondence and conduct of the parties; and that, when so considered it failed to show a completed contract as regards certain lot numbers mentioned in the instrument of November 10, 1917. On the other hand, it is claimed by the plaintiff that the written instrument of November 10,1917, together with the samples concurrently submitted, constituted a valid and binding contract for the sale and delivery of all four styles of dresses, that is, the full 400 dozen.

We are of the opinion that the instrument of November 10,1917, taken in conjunction with the correspondence and the testimony, shows conclusively that it was the intention of the parties that there should be no binding contract concerning any one of the four styles of dresses until the plaintiff had approved a sample made by the defendant from a sample furnished by the plaintiff. And as to such a situation the law is well expressed in Pennsylvania Lubricating Co. v. Wilhelm, 255 Pa. St. 390. In that case the contract was evidenced by a letter from the defendant, the seller, to the plaintiff purporting to confirm a sale of two tank cars of grease “which, in accordance with agreement, is subject to approval of type sample drawn from bulk, which will be submitted immediately upon receipt from the plant involved.” The defendant did not deliver any grease or submit any sample of it but subsequently notified the plaintiff that he would not perform. The court said: ‘ ‘ The contract was lacking in one essential particular, the minds of the parties had not met on the quality of the commodity, as that was to be determined by sample thereafter to be submitted for plaintiff’s approval. Until such approval there was no completed agreement.” And further, on the subject of liability and damages, that court said: “If a contract be invalid because incomplete it is not made valid by the neglect or refusal of one party thereto to do that which would enable the other party at his option to render it complete. And if the contract be still invalid there is no basis for a recovery of damages because of defendant’s neglect to furnish the sample in question.”

In the letter of November 13, 1917, written by the plaintiff about 3 days after the signing of the instrument of November 10,1917, the plaintiff wrote: “ Confirming order which we placed with you for 400 dozen dresses, wish to state that we are sending you by express samples of these dresses. * * * As soon as -these samples are received, will you kindly make up samples which you are to submit, together with swatch of the materials to be furnished, and we will then O. K. same and return to you, together with lists showing sizes and colors desired * * * rush samples to us at once. ’ ’ That letter alone, taken in conjunction with the instrument of November 10, 1917, practically demonstrates that on November 13, 1917, there- was merely an order outstanding on the part of the plaintiff which could ripen intq a mutually binding contract only when the samples to be made by the defendant had been made and sent to the plaintiff and approved. The correspondence and the testimony of Myres all tend to show that it was the understanding of both parties that neither should be bound until the plaintiff had approved samples made by the defendant.

The evidence shows that as to lot No. 605, the sample made by the defendant was approved by the plaintiff and. that 25 dozen were shipped and that the remaining 75 dozen of that lot number the defendant made and had ready to ship, but as the plaintiff objected to the 25 dozen that were shipped, that they were unsatisfactory, the defendant wrote that he would take them back and give the plaintiff credit for them. Of course, as the minds of the parties had both met as to lot No. 605, the defendant would be liable for whatever damages the plaintiff suffered by reason of the defendant’s breach.

As to lot No. 642: The plaintiff on December 1, 1917, acknowledged receipt of the sample from the defendant and admitted it was satisfactory with the exception that the hem should be 4 inches instead of 3 and that the percale collar should be changed to a Repp. Further, the sample of that lot, made by the defendant, was approved by the plaintiff and subsequently 19 dozen were shipped. The balance of that order of 100 dozen was not shipped and Myres testified that the defendant told him in a conversation with him on December 18, 1917, that he would not be able to make up the balance because he did not have the cloth. Of course, as to that order, lot 642, there was a completed contract and inasmuch as the defendant failed to perform his part of it he became liable for whatever damages the plaintiff had suffered.

As to lot 649: The plaintiff wrote on Nov. 13, 1917, “We are in need of some Nos. 649 and 605 first, and would like to have you make up these samples first.” Oil November 24, 1917, the defendant wrote: “We have today expressed to you style 649, 605 and 642, with swatches attached showing the different colors. * * * Upon receipt of these samples, please send us your sizes so that we can go ahead,” etc. On November 28, 1917, the plaintiff wrote stating that the defendant’s Samples had not yet' been received but in order not to have any delay “We are enclosing herewith our order and as soon as samples are received, we will wire you an O. K. on it. ’ ’ On December 1,1917, the plaintiff wrote expressing its satisfaction as to the samples of 605, 636 and 642, but that the sample of 649 .was unsatisfactory “that the stripe which you have substituted on this dress is not at all satisfactory, and we would like to have you submit other stripes to us at once. ’ ’ Also, that it should have a 4-inoh hem instead of a 3-inch, and the skirt should be 68 inches instead of 61. On December 3, 1917, the defendant wrote the plaintiff as to style 649, that he regretted he could not give a different stripe from' that submitted : “We will not go ahead with these graments until we hear from you. If you do not want to lose any time, we would suggest you wire us immediately upon receipt of this letter.” On December 5,1917, the plaintiff wrote the defendant in reference to No. 649, “regret to state that we cannot use same in the material as per your sample. ’ ’ Myres testified that between December 18 and 26, 1917, he was in Philadelphia and saw the defendant, and while going through the defendant’s factory they discussed a quantity of striped goods and that he asked the defendant if he would make that up, referring to a certain quantity of striped goods for lot No. 649, and that the defendant said all right, and that he would send a sample of the dress to the plaintiff. Myres .testified further: “I went away from Philadelphia believing that the sample was going to be sent out to Chicago for our O.K.” On December 26, 1917, the plaintiff wrote to the defendant: “Sample of No. 649 which you were going to make up and submit to us for O. K. has not as yet been received. ’ ’ On December 29,1917, the defendant wrote the plaintiff that he found that they only had a small amount of the goods similar to that which he had promised to submit a sample of; that he had written to the ■mill to see how soon he could get more of that material.On January 2, 1918, the plaintiff wrote the defendant: “We note what you have to say in reference to style 649 and wish to state that we will wait a few days longer for a sample, inasmuch as we shall expect by that time you will have received an answer from the mill and will be in a position to give us this information.” Obviously the minds of the parties never met concerning lot No. 649; no sample submitted by the defendant to the plaintiff ever received the approval of the latter. Being no contract concerning lot No. 649, there was no breach of liability.

As to lot No. 607: On December 5, 1917, the plaintiff wrote the defendant: “We have not as yet received sample and swatch for No. 607. Kindly do your best to submit this sample to us at once so that we can confirm order on same.” And on December 13, 1917, the plaintiff wrote: “How about 607 sampleí Let us hear about this number by return mail. ’ ’ On December 18,1917, the defendant wrote the plaintiff that he could not get the material from the mill for style No. 607 before May. “If you cannot wait for this late delivery, will consider same canceled upon receipt of your advice.” On December 26, 1917, the plaintiff wrote the defendant: “In regard to dress No. 607 which Mr. Myres informs us you will not be able to deliver for some time, wish to state that it is of utmost importance to us that this dress also be shipped at once as we are holding our orders awaiting your dresses. ” No sample of No. 607 was ever furnished by the defendant, and when Myres saw the defendant in Philadelphia he took with him the original sample of 607, but after the defendant had stated that material for that style could not be secured from the mills before May, he took the sample away with him. Evidently the minds of the parties did not meet in regard to style No. 607; and no sample furnished by the defendant was ever approved by the plaintiff, the result being that, as to lot No. 607, there was no consummated contract and, therefore, there could be neither breach nor liability.

It is contended by counsel for the plaintiff that on this appeal only a question of law is involved. With that we are unable to agree. The facts proven do not show that the contract declared upon, that is to sell the plaintiff 400 dozen dresses, ever existed, and such being the case, we.are then both entitled and bound to determine from the record as it appears here whether the evidence which was actually admitted sufficiently tended to show a breach of a contract to sell the plaintiff a certain 200 dozen dresses and so justify the judgment which was actually rendered. Many witnesses were called to prove the damages claimed to have been suffered by the plaintiff but obviously the evidence on that subject was all put in on the theory of a breach of a.contract to sell a certain 400 dozen dresses, and by no safe analysis can that evidence be said to show that the plaintiff was damaged to the extent of the judgment by reason of a breach of a contract as to 200 dozen dresses. The judgment was not justified by the evidence. The judgment is, therefore, reversed.

Reversed.