Hanchett Paper Co. v. Moore

157 Ill. App. 209, 1910 Ill. App. LEXIS 261

• Court: Appellate Court of Illinois
• Decided: October 6, 1910
• Docket: Gen. No. 15,269
• Status: Published

Opinion

Mr. Justice Freeman

delivered the opinion of the court.

Plaintiff’s contention is that the only question in the case is whether there was a contract of -sale between the parties. The trial court found there was not and gave judgment accordingly. In behalf of plaintiff it is urged that the order of defendant was absolute and that the plaintiff’s letter of March 9, 1908, constituted an acceptance of the order and that the contract was consummated by the shipment of March 18th. The original order of date March 6, 1908, was a positive order for the kind of material therein described, but for no other kind. It called for “Elm Backing” with the word Elm underscored, and “with no holes.” The plaintiff’s reply of March 9th was not an acceptance of the order as given. On the contrary the so-called acceptance was at the most conditional, the plaintiff probably having in mind the complaint previously made in the letter of ¡November 16, 1907, as to the quality of a car of so-called elm backing which plaintiff had shipped to defendant about two months before that time. In that letter of ¡November 16th the defendant had complained that the greater part of that preceding shipment was “very unsatisfactory. Many of the bundles have big holes in the center and most of it is very knotty. It is hard for us to make use of one-half of a bundle and the other half is generally waste. * * Wish you would advise us what you are prepared to do to relieve us of these losses. * * * * We are compelled to look to you for reimbursement of the amount of damage caused on this account.”

The defendant’s order of March 6th specifies with particularity that it is “Elm Backing” with “no holes” which defendant wants; and the plaintiff replies, “We cannot cut up these logs and have them perfectly clear. * * * We cannot furnish any veneer any different in quality of stock than what we have heretofore been furnishing you.” The reply concludes with the statement that plaintiff would await “your further instructions in the matter before going ahead and getting- out this car.” This letter was clearly a refusal to accept defendant’s order of March 6th according to its terms, and without modification in respect to its requirement of “no knot holes.” In no sense can it be considered an acceptance of the original order. We cannot concur in plaintiff’s contention that the defendant’s next letter of March 11, 1908., was not a revocation of the original order of March 6th. In that letter of March 6th defendant refers to plaintiff’s 'statement that it could “not furnish veneer any different in quality of stock than what we have heretofore been furnishing you,” and - says explicitly, “If such is the case then you may cancel our order. At least one-third of the stock you shipped in last car load to New York was worthless. Lot of it had holes in it three feet long.” As the matter then stood plaintiff had declared its inability to furnish material such as defendant had ordered and defendant had replied in effect, “that being the case you may cancel our order.”

Plaintiff’s counsel urge that the use of the words “if such is the case” made the cancellation conditional, since it is argued that such was not the case, because the car subsequently shipped to defendant on March 18th it is claimed fully complied with the order, as the defendant itself is said to have construed the order in its letter of March 11th. In that letter, after having directed the cancellation of its previous order, defendant had written: “We don’t expect clear stock, but we can not wrap moulding with veneer that has three feet holes in it.” In view of the fact that plaintiff had written it could not furnish veneer any different in quality than it had “heretofore been furnishing” and defendant had accepted plaintiff’s statement to that effect and replied, “then you may cancel our order,” we are of opinion the trial court did not err in holding the cancellation to have been absolute and unconditional. The distinction sought to be made by plaintiffs counsel to the effect that if instead of saying “if such is the case you may cancel our order,” defendant had used the phrase “inasmuch as you are unable to do so, cancel our order,” the cancellation would have been effective, is in view of the facts shown in evidence a distinction without material difference. Whatever be the construction given the phraseology in controversy, it certainly suspended the original order until some agreement should be reached. ¡Not waiting for further instructions however plaintiff shipped the carload in controversy. ¡No agreement had been reached at that time and none has been since.

The order of March 6th as we have said called for “Elm, ¡Backing” with the word Elm'underscored.. The testimony in behalf of the plaintiff tends to show that the carload in question was not wholly of elm, but “of beech and elm and birch and maple.” The order by its terms called for elm and there is testimony in defendant’s behalf tending to show that elm backing is of a superior grade, more pliable and less liable to break than a backing made of other woods. Even though this carload was “better than the ordinary run,” it was not the quality ordered and there were at least knot holes in it; whereas the order called for “no holes.” Defendant’s counsel insists that on two distinct grounds no recovery can be'had; first that the letter of March 11th constituted a cancellation of the original order, and second, that the carload in controversy, the value of which plaintiff sues to recover, was not Elm Backing and so did not comply with the order. In this contention we concur.

The judgment of the Municipal Court must be affirmed.

Affirmed.