Hall v. Kimbark

11 F. Cas. 234, 6 Chi. Leg. News 306

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: July 1, 1874
• Status: Published

Opinion

TItEAT, District Judge

(charging jury). By the circular sent to plaintiff, Hall, Kim-bark & Co. offered to sell to the plaintiff the articles mentioned on the terms therein stated. If in reply thereto the plaintiff ordered 3,000 pairs of springs on the terms stated,, and if Hall, Kimbark & Oo. had that amount on hand at the receipt of the order, and said amount ordered was not unreasonable, considering the trade in which said co-partnership was engaged, then said order of the plaintiff, when received, was notice that the-offer by circular of Feb. 5th, 1873, had been accepted, and the contract was then complete. It was competent for the parties thereto afterwards to modify the terms, and if no such modification was made, then the plaintiff was entitled to receive the 3,000 pah’s at the price stated in the circular of Feb. 5th, 1873. For a breach of the contract the measure of damages would be the difference between the contract and the market price of the springs. By “market price” is meant that at which plaintiff could have bought tlie same at the time of the final refusal to deliver, or within a reasonable time thereafter, in the open market.

And upon which a verdict for the plaintiff of $1350 was rendered. Upon overruling the-motion for a new trial, Judge TREAT, without giving reasons, adhered to his former rulings.

Where the contract of parties has been expressed in writing, courts do not suffer the terms of the instrument to be varied or modified by parol or extrinsic evidence. This is a familiar rule of law applicable in all courts, and needs no citation of authority to support it Equally familiar and sustained is the rule that where, In a written contract or instrument, ambiguous or technical words or phrases are used, resort may be had to oral proof to explain them — not to vary or change. They stand as used, but their meaning may be the subject of inquiry. And upon such inquiry, the circumstances under which the terms were used, the purpose to be reached by the use of them may be shown. Having these rules in mind, the first suggestion upon reading the circular of February 5, 1873, is, are the words “our present price,” as therein •used, ambiguous, or have they a defined and settled meaning? For example, B writes to A, “At what rate will you sell me wheat?” A, in reply, writes, “My present price is $1.00 per bushel.” In such case the language of A construed in reference to that of B is an offer to sell. On the other hand, B writes to A, “What are the rates at which wheat is selling?” A, in reply writes, “Our present price is $1.00 per bushel.” A’s reply is simply a quotation; he does not offer to sell, and it is not certain whether or not B wishes to buy or sell. The term then has no absolute' import, its meaning depends upon the circumstances attending its use, and is therefore a subject of inquiry and explanation.

When, as in this case, used without reference to any former act or communication, when not addressed exclusively to one person, when issued in a public or general manner, when the instrument containing it falls into the plaintiff’s hands as one of many, without immediate design on the part of the defendants, it was at least the duty of the court to submit to the jury the question of whether the circular constituted an offer on the part of Hall, Kimbarli & Co. to sell to Geo. D. Hall. It is perhaps more reasonable to say that it having been shown to be a mere circular, the court should have instructed the jury that as a circular according to universal mercantile custom, and practice, it should not, in the absence of aiding circumstances, be construed as an offer. To those accustomed to the ordinary newspaper advertisements, to the current quotations or lists issued by houses at centres of trade, this circular would in general have but suggested an intent to state the condition of the market as “we are selling;” “we quote,” “we note the rate,” and as furnishing a basis for a direct negotiation to be opened and consummated If both parties should thereafter concur. Hall, in his letter of Feb. 10, in which he twice refers to it as “your circular,” evidently understood its character; yet the court allowed the .jury to consider none of the conditions; to weigh nothing; it said to the jury, the circular was “an offer to sell:” the telegraphic dispatch was “an acceptance and order,” and thereby closed all discussion. It also ignored the relations of the parties arising out of the letters of the 8th, 10th and 11th days of February, and the effect of the word “answer” in Hall’s dispatch.

The questions of the measure of damages, or the reasonableness of the order are minor, and it is not proposed to discuss them here. It is difficult to see, however, why the measure of damages was fixed as of February 14th, and not as of an earlier date. The main question is not one of an acceptance by letter, but whether an offer was made by the circular, or if made, whether coupled with a reservation of right on the part of the senders to exercise their discretion in regard to filling any order whieh should be based upon it, and which discretion was given to them by virtue of long established usage — so far entering into and constituting an element of the circular, that the receiver was obliged to take notice of, and was bounden thereby. The custom of issuing similar circulars has arisen from the enterprise of merchants, and has found favor not only for its convenience, but also for its aid toward intelligent conduct of business. The rules which it is here contended should be applied upon such circulars, derive reason from the nature of them, and are a necessity to their existence. It is for the interest of all that courts should administer as usage has established them.